Karis, Thomas George - Congressional Behavior at Constitutional Frontiers From 1906, The Beveridge Child-Labor Bill, To 1938, The Fair Labor Standards Act

Copyright by
Thomas George Karis
1951
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
Congressional Behavior at Constitutional Frontiers
From 1906, the Beveridge Child-Labor Bill,

To 1958, the Fair Labor Standards Act
by Thomas George Karis
Submitted in partial fulfillment

of the requirements for the degree
of Doctor of Philosophy
in the Faculty of Politioal Science,
Columbia University
Congressional Behavior at Constitutional Frontiers
From 1906, the Beveridge Child-Labor Bill,

To 1938, the Fair Labor Standards Act
Contents
Introduction i
CHAPTER O N E : Abortive Proposals for a National Child-Labor Law
I. The Beveridge Bill — 1906-1907
A« Senator Beveridge and President Roosevelt 1
B. Preliminaries to the Beveridge debate 5
1* Introduction 5
2. Incorporation of the National Child Labor Committee 8
3* Legislation for the District of Columbia 10
4. National investigation of child labor 13
C. The Beveridge debate 19
1. How important was constitutionality? 19

2. How to determine constitutionality? 24
3« Why opposition on constitutional grounds? 29
4. What restraints on Congress? 33
D. The aftermath of the Beveridge debate 37

E. The dictum of the House Judiciary Committee 39
II. The Palmer-Owen Bill — 1915-1915
A. House hearings: near-unanimity as to policy 44

B. House report: unanimity as to power 50
C. In the House: 5 to 1 for passage 52
D. The Senate committee agrees 58
CHAPTER T W O : The First Child-Labor Law — 1916
The History of the Bill
A. Introduction 59
B. House and Senate hearings 61
C. Committee reports and formal dissent 65
D. In the House: 7 to 1 for passage 69
E. Party politics and W i l s o n ’s intervention 71
F* The bill becomes law 76
II, Popular Pressure and Congressional Response
A» Introduction 80
Bo How heavy was popular pressure for the bill? 80
Co How intense was Congressional support for the bill? 86
III. Constitutional Pressure and Congressional Response
A. Introduction 94
Bo Constitutionality and the final roll call 94
Co The problem of constitutionality 100
16 How serious was it? 100
20 Was the bill constitutional? 101
3, What would the Court say? 103
4o Attitudes toward constitutional argument 105
D. How were constitutional judgments defended? 114
1. Introduction 114
2o The Constitutional document 114
3. Decisions of the Supreme Court 116
4. Commentaries on the decisions 124
5. How were doubts resolved? 127
E» Congress — what obligation? what discretion? 138
1. On questions of power 138
2. On questions of policy 144
CHAPTER THREE: Hammer v, Dagenhart and the Second Child-Labor Law

I, After Hammer v, Dagenhart — What?
A. The opinion of the Court 153
Bo Reactions on the floor of Congress 155
Co In what direction should Congress go? 162
Do What avenue of national action? 168
lie The Second Child-Labor Law — 1919
AoRiding through the Senate 176
BoThe Senate debate: the Dagenhart case and the Court 180
Co The Senate vote: 1918 and 1916 188
Do The House goes along 191
CHAPTER FOUR: Toward Fair Labor Standards — 1952-1938
Io Introduction 195
II« From November 1952: the Flection of Roosevelt
To May 1955: the Scheehter Case
A. A thirty-hour week: the Black-Connery bills 205
1. To April 1933: outdistancing the Administration 205
20 House report: advocacy without hesitation 210
3. Senate report: assertion without boldness 214
4« Debate and passage in the Senate 218
a. The temper of the Senate 218
bo The opponents 223
Opponents favoring amendments 223
Categorical opponents 225
The legislator’s duty 229
Co The proponents 233
The argument of Black 233
Agreement and modification 238
Amendments and minimum wage 242
Bo The Black bill is superseded by the N.I.R.A. 245
Go Connery’s committee: the furthest point forward 252
Do During the life of the N.I.R.A. 257
lo In general 257
20 The Black and Connery bills 258
3. The President and future legislation 263
4* The proposal to extend the N.I.R.A. 266
E. The special case of child labor 274
H I . From May 1935: the "horse-and-buggy" Statement
To May 1957: the Resignation of Justice Van Devanter
A, Introduction 279
B, HUhat did the Schechter case mean? 281
1. The decision’s clarity 281
2. The dicta’s imprecision 285
3. Congressional leaders and the commerce power 286
4. Roosevelt’s reaction 292
C, Avenues for political energy — 1935-1936 296
I. Introduction 296
2. The Administration’s strategy in 1935 298
a0 Introduction 298
b© Extension of the NRA; the Walsh-Healey Act 301
c© The Wagner Act and the Guffey Act 304
d© Roosevelt and ’’doubts 0 © 0 however reasonable” 307
3o The Administration and the Court in 1936 313
4. Other strategies in Congress 317
a® Introduction 317
b. Proposals for legislation 318
Indications of ingenuity 318
The commerce power 322
Divesting of interstate character 326
e« Proposals affecting the Constitution and the Court 527
Introduction 327
Before and after the Scheehter case 329
The Child-Labor Amendment 332
The 1936 session 332
d® Stimulating uniform State action 336
Do Theparty conventions and the campaign 338
E* Thefirst month of the 1937 Congress 345
1. Introduction 345
2© The President’s position 346
3* Amending the Constitution 348
4# Curbing the Court 351
50 Direct legislation 354
F. Roosevelt’sCourt plan 359
G* 108 days — February 5-May 24, 1937 364
le The President marks time 364
2* Congress begins to move ahead 371
30 The week of May 18 375
TV. From May 1957t ”the time has arrived”

To June 1938: the Fair Labor Standards Act
A« Thelegislative leaders 377
1« The President and Justice Holmes 377
2© Congress seconds the President 381
3© The legal spokesman — Robert Jackson 383
Bo Anticlimax in Congress 389
1. Unanimity in the Senate 389

2o How bold was the Senate? 394
5. Safety from/in the Court 398
4<> June 14, 1938 402
Notes in Conclusion . 407
Acknowledgments
I am deeply grateful to Professor Arthur W. Macmahon

of Columbia University for the questions he has asked me
and the hours he has spent in discussion of this study
and for reading the manuscript in detail. I shall not
attempt to describe the extent of my debt to him, although
I cannot forgo recording a special debt to Professor
Macmahon for his patience with my slow movement through
what seemed to be, at times, an endless succession of
pages in the record of legislative history.
I wish to thank Dean Lawrence H. Chamberlain of
Columbia College, Herbert Wechsler and Noel Dowling of
Columbia Lav; School, and Henry Steele Commager, Carter
Goodrich, and Lindsay Rogers of Columbia University for
reading and commenting on all or part of the manuscript.
In the early stages of planning, I had the benefit of
some conversations with Professor Edward S. Corwin, while
he was visiting at Columbia, and Schuyler C. Wallace.
Behind most Ph. D. theses, there are usually one or
two souls who have labored long and selflessly, if not
for scholarship at least for the sake of bringing matters
to a conclusion. Behind this thesis were Mrs. Sue Lambert,
my sister-in-law, and my wife, Mary V. Karis, who often
forced me to make the hard shift from reading to writing.
Of course, for the limitations of this study and
for all its deficiencies and any errors, I alone am
responsible.
Introduction
In moving toward political objectives through the exercise
of national power, Congress and the President have at times
found themselves on doubtful constitutional ground or at a
constitutional frontier. These situations have given rise to
familiar questions. What action is constitutionally permissible?
What action will the Supreme Court uphold? What attitude is
proper in resolving the problem? These questions of substance,
serious to the actors in the legislative drama, are the subject
of this study in a broadly procedural sense. Within the
dimensions of a case study, these pages undertake to examine
the "mental operations" ^ of those who have faced these problems
and the various courses of action they have followed. What
assumptions underlie "constitutionality" and what are its uses
as a symbol? How important are "constitutional morality” and
the Supreme Court as deterrents on legislative action? The
inquiry is not, therefore, into the constitutionality of legis
lation but into the process of legislating constitutionally, an
inquiry into Congress (and the President as chief legislator)
rather than the Court.
A recent chapter in legislative history provides the
framework of this study: the movement from 1906, the date of
the first bill for national regulation of child labor, to the
"Economic theory became a fascinating subject — the orthodox

types particularly — when one began to take the mental operations
of the theorists as the problem, instead of taking their theories
seriously," Wesley C. Mitchell to John M. Clark, in Stuart A, Rice
(ed,), Methods in Social Science, 1 9 3 1 , p. 677.
Fair Labor Standards Act of 1938. The substance of the policy
of national labor standards is of incidental interest only.
Legislative movement toward this objective has been "selected for
examination because it is to be observed in the context of a
judicial development that moved full circle — from the Lottery
Case of 1903, 'which seemed to hold the door of the commerce
power open for the 1906 bill, via Hammer v. Dagenhart in 1918,
which held void the first Child-Labor Act, to the Darby case in
1941, which upheld the Fair Labor Standards Act and explicitly
overruled Hammer v. Dagenhart — a chapter in constitutional
history that is today closed.
In the legislative action described in these pages, the
major political and judicial developments of the period from
Theodore Roosevelt to Franklin D. Roosevelt are reflected. The
movement of progressive political reform in the years before
World War I, aided somewhat uncertainly by a national-minded
Supreme Court, was marked by the introduction of the Beveridge
bill in 1906 and culminated with the passage of the first
Child-Labor Act in 1916. This act represented not only the most
advanced point in the movement for national reform legislation;
it marked also the furthest advance in the accomplishment by
Congress of police power purposes through the exercise of the

commerce power. The Dagenhart case two years later, which held the
act void, stood as a barrier to national regulation of labor
standards and heralded a dozen years of political reaction to
national reform legislation. A second child-labor law was
enacted, based upon the taxing power. During the nineteen-
twenties, this law and also a minimum-wage law for the District
of Columbia were declared unconstitutional, and a child-labor
ill
amendment was submitted to tiie States* In the nineteen-thirties,
there was a movement for recovery from depression and a revival
of the reform movement. Emergency legislation was passed
providing indirectly for child-labor and wage and hour standards*
The New Deal was marked by constitutional doubt, judicial disapproval,
and some rapid judicial movement, including an explicit overruling
of the minimum-wage case. Finally, not only was the 1916 Child-
Labor Act re-enacted with minor changes in the Act of 1938, but
also national wage and hour standards were established*
Certain stages of the legislative history have received
intensive attention, and other stages have been ignored. The
1916 Act and two abortive proposals which preceded it are examined
at some length, but the narrative skips over the years from 1908
to 1913, Congressional discussion in 1906 and 1907 of proposals
to prohibit interstate shipment of child-made goods was episodic
and premature (even the National Child Labor Committee was not
united on the need or the desirability of a national law) but
dramatic and of interest. From 1908 to 1913 there was little
discussion in Congress on the subject of child labor. Rapid
progress was made in the enactment of state laws, and uniform
state laws were urged. The growing belief that competition
between states was retarding the adoption and improvement of
state standards produced dissatisfaction, however; and by 1913
a serious drive was under way for a national law to prevent the
pollution of interstate commerce. The problem seemed to be one
that could be met by a statute similar to a number in force by
1910 ~ notably statutes prohibiting interstate shipment of
lottery tickets, impure foods, and white slaves. A child-labor
bill similar to Beveridge’s was seriously discussed in 1914 and
w
passed the House before the end of the Sixty-third Congress
in 1915.
The passage of the first Child-Labor Act, the reaction to
Hammer v. Dagenhart (a 5-to-4 decision), and the enactment of a
child-labor tax are examined. But no chapter has been written
describing the reaction to the Court's 8-to-l decision in 1922
holding the tax void. Instead, attention is shifted immediately
to December 1932, when the first serious challenge to the
Dagenhart case appeared. During the ten-year interim from 1922
to 1952, there was no lack of discussion in Congress about the
Constitution and the Court, particularly with regard to the two
child-labor cases; but commentary was overwhelmingly conservative
during these normal years. No serious demand was heard in Congress
for national legislation governing labor standards; and demand
for national regulation of child labor, in particular, disappeared
with the initiation in 1924 of an appropriate constitutional
amendment. The energy that had successfully brought about the
passage by large majorities of the two child-labor laws had not
been diverted to another avenue of national power or directed
against the Court but had been concentrated on support for the
amendment procedure.
In 1952, bills to spread the work by establishing a thirty-
hour week were introduced. The bills did not include child-labor
standards but did directly challenge the Dagenhart case. Therefore,
since this study is more concerned with the fate of Hammer v.
Dagenhart than of child laborers, the inquiry into the New Deal
period has been broadened to include the movement toward
minimum-wage and maximum-hour as well as child-labor standards,
and legislative activity from 1932 to 1938 is discussed in the
following pages as a continuous narrative*
Congress finally reached the objective by movement on the
avenue of the commerce power* Proposals for the exercise of
other powers are, of course, also examined since the various
powers of Congress were for proponents merely means to a desirable
end. "While the refinements of legal logic may seem to make
these powers different," two students of labor legislation have
written, "they are identical from the standpoint of the legislation
and the public purpose which they justify*" 1 In the years
following 1906, Congress used or heard suggested not only the

i
taxing power and various formulations of the commerce power but
also the investigatory, proprietary, postal, spending, war, and
even treaty-making powers. The legislative movement included,
also, attempts to reach the objective indirectly, through
uniform state laws or interstate compacts, or to approach the
objective indirectly by clearing the way for national legislation,
; through amendment of the Constitution or through some action to
reduce the threat of the Court.
One limitation of this study remains to be noted. What has
been taken to be of most interest is what,public men have said
publicly and what, finally, they have done. Therefore, the
inquiry is for the most part into the usual and readily" available
sources of legislative history: presidential messages, Congress
ional documents, hearings, and reports, and the Congressional
Record. Behind-the-scenes activity which has not found its way
into the public record has been noted only incidentally, and
motives which have not received articulate expression have mainly
been ignored. No psychoanalysis has been attempted,

! 1
! -i
i John B. Commons and John B. Andrews, Principles of Labor

[
j Legislation. 1936, p. 517*
t
i
What can a study of this kind "prove”? At the least, it
may illustrate the truth of Edward S. Corwin’s observation of
twenty-five years ago, that "a real attempt to balance the
debit and credit side" of judicial review ". . . would require

1
much laborious investigation." The lack of such an investiga
tion has not deterred students from, generalizing about what is
"undoubtedly" or "probably" true. At the most, the present
study may measure the validity of the following contradictory
and cliche-like statements with reference to one slice of
legislative history.
The Supreme Court standing as a monitor, it has been said,
has undoubtedly deterred Congress from passing unconstitutional
legislation. If there had been no Court with the power of
judicial review, Congress would probably have run riot. But
legislators are themselves sworn to uphold the Constitution and
can be expected to show as high a concern as do judges for the
Constitution’s letter and spirit. Anyway, deterrence is due
almost entirely to political rather than judicial restraints.
Certainly, it is said, Congress has been delayed by the
prospect of judicial action from reaching its objective. On
the other hand, because the Court has stood as the arbiter of
the Constitution, Congress has often acted hastily and has
"passed the buck” to the Court. At any rate, the Court has
Book review in 12 American Bar Association Journal 172 (1926)0

Corwin is cited in Henry W. Edgerton's valuable article, "The
Incidence of Judicial Control Over Congress," (1937) in 1 Selected
Essays in Constitutional Law 793 at 793-794. ”A full treatment,"
of "the practical question of the incidence of the courts’ control
over Congress," states Edgerton, would include "the number and
character of the acts which Congress has been deterred from
enacting, or encouraged to enact, by the prospect of judicial
review."
followed the election returns, and invariably Congress has
reached its political objectives. But at what a price! Yet
it has done so probably no sooner than the people really
wanted.
If Congress has acted in a constitutionally immoral way,
it is said, the Court is largely to blame: it has muddied
the waters and introduced confusion into the legislative
process. Yet the Court has clarified the powers of Congress
and defined constitutional frontiers. Also, the Court has
opened gates and pointed the way. But the way has not been
clear because the Court’s inability to keep considerations of
policy and power exclusively separate has encouraged the
legislator’s habit of confusing constitutionality and wisdom.
Constitutionality has often been a cloak for hypocrisy. Never
theless, the Court has tended to stabilize the legislative
judgment and to impart a glow of principle to legislative
debate.
These statements may, indeed, all be partly true. That
they are sometimes overstated is not surprising since they
concern matters especially subject to bias — the reliability
of a democratic body, Congress, and the usefulness of an
undemocratic body, the Supreme Court. The present writer may
have failed to overcome his own bias since his conclusions
come close to the hypotheses with which he began. For example,
this study does not support the expectation that in the absence
of judicial restraints Congress would have run riot, nor does
it find that the existence of the Court has tended significantly

to clarify or rationalize debate. These pages also demonstrate
that conservatives have not been the only persons who have
grasped the Court as an ally and that the symbols of opposition
have not been derived from constitutionality alone. Conclusions
may be left for later, however. Whether or not a priori notions
are held to be disproved, the following pages may have value in
themselves as a description of a peculiarly American chapter in
experience with constitutional democracy.
Abortive Proposals for a National Child-Labor Law
Io The Beveridge Bill — 1906-1907
A. Senator Beveridge and President Roosevelt
Nearly ten years were to go by before Congress in 1916
enacted a national child-labor law similar to the bill
introduced by Albert J. Beveridge on December 5, 1906. Beveridge,
the Republican senator from Indiana, proposed the prohibition
of transportation by carriers in interstate commerce of the
products of mines and factories which employed children under
fourteen years of age.’*’ The demand in 1906 for regulation of
child labor on a national scale was not yet sufficiently strong

2
to compel serious Congressional consideration. Nevertheless,
the Beveridge bill has a historic importance. In addition
to being the first bill
S. 6568, CR 59:2: 50 (i. e., Congressional R ecord, 59th

Cong., 2nd Sess., p. 50). H.R. 21404, bearing the same title,
was introduced in the House a day later. The officers of the
mines and factories were required to file affidavits with the
carriers certifying that children under fourteen were not
employed. These officers and the officers of the carriers were
subject to heavy penalties. CR 59:2: 1552,
2
In the summer of 1904, the platform of neither major party
contained planks on labor by women and children. (The
Republican platform did not include the 1900 plank in favor
of "the extension of opportunities of education for working
children, the raising of the age limit for child labor.")
Both the People*s Platform and the Socialist Platform called
for an end to child labor an for shorter hours. See Kirk H.
Porter, National Party Platforms (1924), pp. 231, 244ff.
with permission o f the copyright owner. Further reproduction prohibited without permission
to propose national regulation of child labor, the bill was the
subject of a lengthy speech and debate in the Senate in January
1907. That Congress could extend into the field of labor stand
ards its power to establish national policy through regulation
of interstate commerce was a proposition bluntly asserted by Bever
idge. His speech and the Congressional reaction which it provoked
brought to a head the scattered discussions which had been sti
mulated earlier by related proposals for Congressional action
short of national regulation.-
Some related proposals were recommended by President Theodore
Roosevelt in his message to Congress on December 4, 1906, the day
before Beveridge introduced his bill. After referring to the
"horrors" of child labor which were "a blot on our civilization,"
the President recommended "a drastic and thoroughgoing law" — a
child-labor law for the District of Columbia and the Territories.
Perhaps in explanation of his failure to recommend a national law,
Roosevelt said, "It is true that each State must settle the ques
tion in its own way . . . The President did recommend, however,
that Congress promote State uniformity by authorizing an investi
gation of child labor. ^
The omission in Roosevelt's message was disappointing to
Beveridge and his supporters because they had hoped that Roosevelt
would recommend passage of a national law. Beveridge had been
preparing for months to fight for such a law. Child labor "had
aroused his wrath," and with his usual thoroughness he had collected
; 1 CR 59:2: 26.
with permission of the copyright owner. Further reproduction prohibited without permission.
and studied all the available data.'*’ In a speech on October 8,
1906, opening the Massachusetts Republican campaign, Beveridge
£
spoke of a national child-labor law as "an immediate necessity."
•7.
A few days later, he urged Roosevelt to recommend a national law.
A month later Beveridge sent a copy of his bill to the President
and, with the opening of Congress less than two weeks away, an
other letter in which he brushed aside as unthinkable any question
of constitutional doubt.
The bill sent to you is admittedly constitutional;

nobody will question its constitutionality. No
constitutional argument, plausible or otherwise, can
be made against it. . . . The bill . . . is a gradual
extension of national power for the purpose of curing
nation-wide evils under the interstate commerce pow
ers of Congress and not open to constitutional objec
tion.&
Roosevelt's secretary replied that the President was "very glad

to learn what you are doing about the subject of child labor"
but that his message was already written.®
The equi'vocation of this reply was evident when Roosevelt's
message was delivered. Beveridge, to rally his friends from
discouragement, gave out the secretary's letter® and, on the day
^ Claude G. Bowers, Beveridge and the Progressive Era (1932),

245, 250.
^ Albert J. Beveridge, The Meaning of the Times and Other Speeches
(1908), 291.
® Oct. 16, 1906. Bowers, op. cit.T 245.
^ Quoted, ibid., 245-246. Beveridge continued; "If it is not
too late, I am hoping that you can make favorable mention of
this in your Message. The country is quite rt£e for it. . . .
The proposition to remedy the child-labor evil met with great
enthusiasm every place I spoke throughout the country. . . . "
5 Quoted, ibid.. 246, 6 Ibid., 251.
after Roosevelt’s message, introduced his bill. The same day
provides a footnote that is of interest: Senator Henry Cabot
Lodge of Massachusetts introduced a bill "to prohibit the emplojr-
ment of children in the manufacture or production of articles
intended for interstate commerce."^ From that day on, however,
Lodge did almost nothing to further national regulation of child
labor,2
S, 6730. CR 59:8: 53, Lodge claimed that there was nothing

novel about a national law, that it had been proposed four years
before by Senator Fairbanks, Beveridge’s Indiana colleague and
by Senator Hoar and Mr. Roosevelt. Beveridge found this asser
tion to be untrue. Bowers, op. cit., 251.
2 Lodge did not re-introduce his bill, nor did he speak up in
Congress for such legislation in the years from 1906 to 1916.
(On April 23, 1910, he submitted a resolution of the Massachu
setts legislature in favor of a national law, CR 61:8: 5245-
5246.)
Bowers states that. Lodge, in the interest of manuf acturers
in Massachusetts, prepared a bill to regulate child labor in the
District of Columbia in order to head off Beveridge’s bill. On.
cit.. 246, 250-251. Lodge’s bill for the District of Columbia
had been pending for a year, however, and had been originally
introduced in December 1904. See below, p. .
B. Preliminaries to the Beveridge debate
1. Introduction
At the time of the introduction of the Beveridge bill in

December 1906, at the outset of the short second session of the
59th Congress, some related proposals were pending in Congress
which deserve consideration before the Beveridge debate is ex
amined. Two resolutions for a national investigation of child
labor and, in each house, three bills to regulate child labor in
the District of Columbia had been introduced shortly after the
59th Congress convened in December 1905.^ These resolutions and
bills had appeared for the first time in 1904 in the 58th Con-
p
gress and had died in committee. In the two months following
introduction of the Beveridge bill, a bill authorizing an investi
gation of child labor was passed by each house and became law on
3
January 29, 1907. A child-labor bill for the District of Columbia
had less success. A bill was passed by the House and reported by
a Senate committee in the summer of 1906, while Beveridge was
preparing to press for a national law. Beveridge's speech in
H. Res. 14, Dec. 4, 1905; H. Res. 155, Jan. 16, 1906; CR 59:1:
56, 1165, Dec. 4, 1905: H.R. 375; Dec. 6, 1905: S. 50, S. 691,
H.R, 4462; Dec. 11, 1905: S. 1242, H.R. 5974; CR 59:1: 53, 139,
150, 201, 270, 308. Sponsorship was shared by Republicans and
Democrats: for an investigation, Rep. McNary (D, Mass.) and Rep.
Gardner (R, Mass.); for regulation in the District of Columbia,
Sen. Lodge (R, Mass.), Rep. Powers (R, Mass.), Sen. Gallinger
(R, N.H.), Rep. Meyer (D, La.), Rep. Babcock (R, Wis.), and Rep.
Allen (R, Me.).
® See below, pp. 7®, ® 34 Stat. 866.
January 1907 was for his national bill as an amendment to the
District of Columbia bill. Both the bill and the amendment
died with the 59th Congress in March 1907. In 1908, however, a
child-labor bill for the District of Columbia was finally en
acted.^
Two other related proposals were pending when the Beveridge
bill was introduced. "A bill , . . for the establishment of a
board for the protection of children and. animals," which had
appeared on December 12, 1902 (the first bill to propose national
action in behalf of children), was introduced for the third time
on the opening day of the 59th Congress.2 Roosevelt referred to
the desirability of such a board in his annual message of the
following day but without emphasis. The bill was again to die
in committee. Not until 1912 was a similar bill passed and the
4
Children's Bureau established. A second proposal of interest
was a bill, which was easily passed, to incorporate the National
Child Labor Committee.
The latter bill was of minor importance but suggested by it
was the question of constitutional power which Beveridge was to
raise* This question was also suggested by the proposals for
1 35 Stat. 420.
2 H.R. 15991, CR 57:2; 272. H.R. 3573, Nov. 17, 1903,CR58:1:
314. H.R. 221, Dec. 4, 1905,CR59:1: 50.
3 "The legislature of Colorado has recommended that the National
Government provide some general measure for the protection from
abuse of children and dumb animals throughout the United States.
I lay the matter before you for what I trust will be your favor
able consideration." CR59:1: 94.
4 37 Stat. 79.
District of Columbia legislation and for national investigation.
How sensitive was Congress to the implications of these proposals,
and what was the Congressional reaction?
8. Incorporation of the National Child Labor Committee
The bill to incorporate the National Child Labor Committee
was introduced on June 5, 1906 by one of the Republican leaders
of the Senate, Spooner of Wisconsin, who was later to express

grave doubts as to the constitutionality of a national child-labor
law.1 The Committee had been organized in New York City in 1904
2
to assist State committees and to work toward uniformity. By
the end of 1906 it had forty-eight members from sixteen States and
an associate membership of over 1,500 persons. Now, the Committee

sought a federal charter "to put an accent on its national scope."
Neither the bill nor its legislative history, however, indicated

that national legislation was among the Committee's objectives.
According .to the bill, the Committee worked "to assist in pro
tecting children by suitable legislation . . . . to coordinate,
unify, and supplement the work of State or local child-labor com
mittees . * . ."4 If there was an intimation of national action

in the words "public opinion" in the following statement —
the objects of said corporation shall be . . . to raise

the standard of public opinion and parental responsibility
with respect to the employment of children. . .
1 S. 6364, CR 59:1: 7838.

g
It was organized "simply" for this purpose, said the manager
of the bill in the House. Jan. 14, 1907; CR 59:2: 1096. See als»
House Report No . 5485, 59th Cong., 2nd Sess., Dec, 14, 1906,
(pp. 1-2).
® CR 59:2: 1096. The bill, providing for a special charter, was

an exception to the District of Columbia Code, which required that
a majority of the incorporators be citizens of the District.
4 CR 59:1: 8461.
that intimation was erased by a committee amendment striking
the words out* Within two weeks after the bill had been
introduced, the Senate approved it without discussion or a

1
roll-call vote*
When Congress met again in December, the bill moved
through the House without serious difficulty and with no
variation from the interpretation placed upon it in the Senate*
One member of the House saw in the promotion of legislation
by the Committee ttan objectionable feature” although child-
labor legislation was "proper” within the States. There was
no discussion either of his objection or of what was proper*
On January 14, 1907 the bill was passed by the House without
3
a record vote and on February 81 became law*
1 June 14, 1906, CR 59:1: 8461-8468.
^ See House Report N o * 5485, 59th Cong*, 8nd Sess*
3 See 59:8: S92» 517, 1 6 2 3 » 1851, 31.15, 3861, 3514*

34 Stat* 914.
3. Legislation for the District of Columbia
The recommendations which President Roosevelt had made in

his annual messages for regulation of child labor in the District
of Columbia had appeared in a context which suggested that such
legislation was near the frontier of permissible action by the
national government* However, the latter could act, he said in
1901, as "a good employer" and as governor of the District of
Columbia.-*- In 1902, Roosevelt added an additional reason for
the passage of such legislation. Although Washington was a non-
industrial city, he said, its legislation might be "a model for
the rest of the nation."£ Roosevelt repeated his recommendation
in December 1904; and a week later, Senator lodge and a colleague
in the House introduced the first child-labor bill for the District
of Columbia.3 Lodge, however, probably did not consider the bill
to be on the frontier of Congressional power since he was soon,
the following year, to introduce the bill for national regulation
which has already been noted.
During the 59th Congress, on April 9, 1906, a child-labor
bill for the District of Columbia was passed by the House three
^ Accordingly, enforcement of the eight-hour law for government

employees should be improved, said Roosevelt; the Government's
contracts should forbid excessive hours and aLl night work for
women and children; and "a good factory law" for the District of
Columbia should be passed. .There should also be legislation, he
said, to aid. the States in their efforts to end the competition
of convict labor — "if possible," Dec. 3, 1901; CR 57:1: 83-84.
2 "Labor legislation" was listed by Roosevelt among examples of
legislation "essentially local or municipal in . . . cha'racter"
which Congress could enact for the District of Columbia. Dec. £,
1908; CR 57:2x9.
3 S. 5988, H.R. 16277, Dec. 12, 1904, CR 58:3: 124, 183. For
Roosevelt's message, see CR 58:3: 11-13.
days after the House had received the bill from committee."*"
Neither in the committee's report nor in the short discussion
on the floor was there any indication that the bill was blazing
a new path or that child labor was a problem requiring national
p
legislation. The member in charge explained that forty-one
States already had child-labor laws and added, ". . .we are
just following."^
Within a month there was reported in the Senate a similar
bill, one "modeled upon the State legislation which has proved
most efficient and passed the scrutiny of the courts."4 During
June 1906, the bill was thrice objected to in the Senate's
Committee of the Whole' and was passed on to the second session
5
of the Congress.
The attitudes and. tactics which marIced the history of the
Child-Labor Law of 1916 are to be found in the history of the
District of Columbia bill. Thus, no one dissented from the
proposition that the evils in child labor should be condemned.
The opposition, spealcing in the spirit ofHerbert Spencer or
•*■ H.R. 17838, a committee substitute, CR 59:1: 4967-4971. The

bill prohibited certain employment during the day for children
under fourteen and during the evening for children under sixteen.
2 See loc. cit. and House Report No. 2949, 59th Cong., 1st Sess. ,
April 6, 1906 (pp. 1-577
3 Rep. Morrell (R, Pa.), CR 59:1: 4969.
4 S. 5665, Senate Report No. 2302, 59th Cong., 1st Sess.,May 3,
1906 (pp. 1-2), p. 2.
5 June 6, 12, 25, 1906, CR 59:1: 7914-7915, 8338-8339, 8457.
"It is a step in the direction . . . of the Government assuming
the control and management of the domestic relations." Sen. Hale
(R, Me.), CR 59:1: 7914.
Horatio Alger, proposed amendments to emasculate the bill. The
spokesmen for the bill had the lofty confidence of speaking for
an extraordinary majority, and the opposition concentrated most
of its attention on legislative obstruction. Finally, the bill
was to be passed with the help of many proponents who were luke
warm in their support of child-labor legislation or fearful of
the precedent.
Not until January 1907, when Beveridge"introduced his bill
as an amendment, did the discussion move to the level of consti
tutionality. This question had not arisen earlier in the con
sideration of the District of Columbia bill; however, one could

sense rumblings of it between the lines of the Congressional
Record when Senator Dolliver of Iowa on December 10, 1906 said:
, . . and I venture to say that when the Congress of

the United States fully discusses the child-labor
question, as it will before very long, it will not
adopt a standard very far from . . , the proposed
statute.'■*-
Qn that day, after some protracted wrangling about the question
of whether there had been an agreement to consider the bill in

the Committee of the Whole, the bill was reported to the Senate,
g
where no decision was reached.
■*- Discussion of child labor was universal, he said. . .

the whole outlook of our public opinion in the United States has
undergone a noticeable changs amounting to a revolution within
the last few years.” CR 59:2; 205-206.
2 CR 59:2; 196-208'.
4o National Investigation of child labor
The first resolution for a national investigation of child
labor was introduced in the 58th Congress on April 28, 1904.^
In a message to Congress' in December 1904, Roosevelt endorsed

p
such an investigation. He recommended appropriations to enable
the Labor Bureau in the Department of Commerce and Labor to in
vestigate wages and hours, the labor of women, and especially
child labor. Only the States, he said, could “actually" meet
the problem of child labor "in most cases." But interstate com
petition made the enactment of State legislation "excessively
difficult. . . so that the worst tends to drag down the better."
The remedy was to promote uniformity through national "investi
gation and publication."
In the 59th Congress, a bill was reported in the House on
March 30, 1906 in lieu of two pending resolutions which called
for a national investigation.3 The committee's report carried
no suggestion that State legislation had proved inadequate. A
national investigation was a remedy for inadequate State infor
mation and not, it appeared, a preliminary to national legisla
tion.4
1 H. Res. 369, April 28, 1904, C R 5 8 ; 2 : 5851,
2 Dec. 6, 1904; CR 58:3: 11-13.
3 H„R. 17562, CR 59:1: 4516. The resolutions are cited above

P• ^ 1 ,
4 House Report No. 2745, 59th Cong., 1st Sessl, March 30, 1906
(pp. 1-3).
The bill authorized the Secretary of Commerce and Labor to spend
$300,000 and to utilize the Bureau of Labor and the Census office
to investigate and report upon the industrial, social

moral, educational, and physical conditions of woman
and child workers in the United States wherever employed,
with special reference to their age, hours of labor,
term of employment . . . and other conditions . . . and
the means employed for the protection of their health,
person, and morals.
A Senate bill was reported two months later, on June 9, 1906,

2
but without the authorization of $300,0000 When Congress met
again in December, the Senate, after agreeing to the excision

g
of the appropriation, passed the bill without discussion. The
Senate was not unaware, however, of the constitutional questions
to which the bill might give rise. Senator Dolliver’s reference
to the imminence of full discussion of child labor had recently
been heard; and, on the day before the bill authorizing an investi
gation was passed, the Senate gave official recognition to the
constitutional question. Without fanfare and by unanimous
vote, the Senate agreed on December 17, 1906, to the following
resolution of Senator Spooner:
Ibid,, p, 2, The bill was given a privileged status on

April 16, 1906 after the objection had been raised that the
investigation would cost $300,000 and duplicate a proposed
report by the Census Office. CR 59:1: 5345-5346. Resolutions
were introduced requesting information about this matter from
the Secretary of Commerce and Labor. H. Res. 403 and 404,
April 18, 1906, CR 59:1: 5508,
2 S. 5469, introduced on April 2, 1906. CR 59:1: 4555, 8140.

Senate Report No. 4245, 59th Cong., 1st Sess., June 9, 1906 (pp0
t=st.
— --------- —
5 Dec. 18, 1906; CR 59:2: 500.
Resolved, That the Committee on the Judiciary . . .
consider and report to the Senate at the earliest
convenient date whether the Congress in the exercise
of the power to regulate commerce . . . can, in its
opinion, constitutionally prohibit the transportation
of commodities from the State in which they were
produced, to other States, or to other countries,
because the same were produced in whole or in part
by child labor.1
In the House, the bill authorizing an investigation was

passed without a roll call vote on January 21, 1907; but some
discussion did arise,^ "It is a comparatively new question,"
said Representative Bartholdt of Missouri, who was in charge
of the bill; but there could be "no doubt" as to its merits.
Never before had there been such a national investigation; it
went beyond the census reports and covered the "sociological
aspects."^ There was agreement from Crumpacker of Indiana, who
had objected to the $300,000 appropriation nine months before.
He had learned since then, he said, that the forthcoming census
reports would not be complete.4
The debate was not on the merits but almost entirely on
constitutional power. Bartlett of Georgia and Gaines of Tennes
see asked how Congress could back up a federal inspector when
the manager of the factory exercised his "legal right" and "shut
the door in his face."'J Bartholdt in reply referred to the desire
1 CR 59:2: 449.
2 Jan. 21, 1907; CR 59:2: 1463.
3 CR 59:2: 1457.
4 CR 59:2: 1459.
3 CR 59:2: 1459-1460. Bartholdt and Crumpaeker were Republicans;
Bartlett and Gaines, Democrats.
/6
of State boards for information, but he did not face the ques
tion squarely. "Let such a case come up," he said, " . . . and
the courts will pass upon it."1 Gaines, on the other hand, ad
dressed himself not to Bartholdt, a newspaperman, but to Crum
packer "because I know he is a good lawyer." Crumpacker answered
directly: if Congress forced the door to be opened, . .1
2
believe it would transcend its power." Gaines, who was himself
a lawyer, again expressed his uncertainty. The bill raised new
questions, he said, which had been examined neither by Congress
nor the courts. But he concluded:
I am going to vote for the bill. I doubt its

constitutionality. 1/Ve need for many purposes
the information these agents may secure in con
sidering other legislation. The courts can
settle the validity of the law.s
Thus far, the discussion had concerned only the investiga

tion itself rather than the legislation to which investigation
might lead. That question was raised and a warning sounded by
Tawney of Minnesota, Republican chairman of the Appropriations
Committee.
. . . we are embarking upon a field of investigation

the boundaries of which no man can contemplate, the
end of which no man can see, the cost of which no
man knows . . . and the results of which the Federal
Government is powerless to deal with . . . A
1 CR 59:2: 1458. 2 CR 59:2: 1459.

3 CR 59:2: 1460.
4
For this and M s remarks in the text below, see CR 59:2:
1460-1461,
There were some "ladies," he said, who had seen the President
about an investigation and who were prepared to remedy evils

by recommending legislation to Congress* He would have "no
objection whatever" if Congress had power under the Constitution
but, he said, even the advocates admitted that Congress had no
such power.
This assertion was challenged by none of the advocates
who replied. Bartholdt, Crumpacker, and Gaines arose to defend
the investigation itself — Gaines adding:
Of course we could not go down into the States

and meddle with their matters. I agree with the
gentleman in that.l
Tawney had set up a straw man. It was most firmly brushed

aside when one of the sponsors of the bill arose to speak:
Now, I am not such a humbug as to pretend that I

believe that the regulation of commerce clause of
the Constitution gives us the right to regulate
child labor. I know just as well as the gentleman
that such power is reserved for the States by our
instrument of Government.^
But Congress did have power over the District of Columbia and
the Territories, he said; and the investigation was solely to
pave the way for legislation in those jurisdictions, which
would in turn stimulate the States to act.
1 CR 59:2: 14-61.
2 CR 59:2: 1462. The speaker was Gardner (R, Mass.), who
had introduced H„ Res. 153 (see above p,«5” ).
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The bill was passed and sent on to the President two days
before Beveridge began his promised speech in the Senate. If
any of the unrecorded yeas in the House ,came from members who
sympathized with Beveridge and who saw in the investigation a
preliminary step to a national child-labor law, those members
were silent.
C. The Beveridge debate
1, How important was constitutionality?
In the Beveridge debate of January £3, 28, and 29, 1907

the problem of child labor appeared nakedly on the floor of
Congress for the first time*'*' Beveridge spoke with wrath and
righteousness. He was sarcastic; he scolded and warned and
lectured like an impatient schoolmaster* His remedy was of
fered with such urgency that one might have expected an im
patience with constitutional restraints were it not that he
appeared as certain of constitutionality as of the evil which
g
needed his remedy.
He had spent "nights and days and weeks and months in
accumulating testimony"® and was concerned first with present
ing the facts in such detail that they would shock the Senate
and the country and secondly with defending his bill's consti
tutionality.^ His remedy was for a national evil, which Bever
idge proceeded to describe comprehensively and in detail. With
a lawyerlike approach, he had secured affidavits from dozens of
writers so that the books and articles which he cited could be
5
considered as evidence "susceptible of proof in court." He dis-
1 CR 59:2: 1552-1557, 1792-1826, 1867-1883. Extracts are pub

lished in Beveridge, op., cit,« pp. 308-367. Beveridge had sub
mitted his bill as an amendment to the District of Columbia child-
labor bill on Jan. 3, 1907. CR 59:2: 612.
If these certainties should be discounted because of Beveridge's
tendency to overstatement, it is true, nevertheless, that the in
tensity appeared equal both as to policy and power.
3 QR 59:2: 1802. 4 qr 59:2: 1553, 1801.
5 CR 59:2: 1801.
cussed the prevalence of child labor and spoke vividly of the
glass factories, the coal breakers, the silk mills of Pennsyl
vania, the southern cotton mills.'*' He gave, he said, only typi
cal examples and not the worst "unless the indifference of the
Senate compels it — such, for example, as the pouring of cold
water on little children to keep them awake after they have
worked standing on their feet ten h o u r s H e pointed out "the
physical ruin, the mental and moral ruin" of the children, and,
using a lengthy analogy from British experience, "the process of
the deterioration of the race,"5 He introduced an abstract of
State laws and. argued that the States were unable to meet the
problem — powerful interests were effective in preventing new
legislation, progressive States were at a competitive disadvan
tage, laws were not uniform, and enforcement was weak;^ he spoke
positively of a responsibility to children who were citizens of
the Nation, and he concluded with some "solemn warnings." Labor
was warned of.the effect of child labor on manhood wages. Fellow
Republicans and protectionists were asked "with what grace" they
could seek tariffs for industries supported by cheap child labor.
And to "my brothers of the South" lie said without subtlety, "I
am glad to see the negro children going to school . . . steadily
strengthening the black race for the future."5
Beveridge was determined to give facts, but the Senate did
not appear to want facts. "I warn the enemies of this reform,"
he said early on the first day, "that this testimony will be
1 CR 59:2; 1552-1557, 1792-1802.

2 CR 59:2; 1553. 5 CR 59:2: 1802-1806.
4 CR 59:2: 1807-1821 5 CR 59:2; 1821.
only the beginning if more is found necessary."1 Later, he
would present the legal argument, "which, I am told, Senators
desire to hear most . . . ,"2 On the second day he explained
that he was spending much time on the facts "because we are

told that this whole matterwas a vast exaggeration . ..
Shortly afterwards, Senator Bacon of Georgia interrupted to say
that he did not disagree as to the merits of the legislation.
Rather, "I am waiting with much patience when the Senator shall
reach what I regard as the most crucial question, which is one

of law . . . ."4 Beveridge continued with facts but soon an-
5
nounced that he would move rapidly to get to the legal argument.
With his usual sarcasm, he said of his colleagues, " . . . some
how they do not care to listen to the evidence . . . ."
Of course it is not so interesting, I suppose, to

learn about the murderof these children as it is
to hear an academic discussion about artificial
'rights' of artificial things, or a *constitutional'
discussion on the law . . . . I will come to that
in due season, but not until the facts have been
laid before the country.6
There seemed to be agreement that child labor had to be

stopped. "We all," said Beveridge, "agree upon that — anyhow,
1 CR 59:2: 1554. 2 CR 59:2: 1557.
3 CR 59:2: 1792.
4 CR 59:2: 1797. Senator Bacon did, however, accuse Beveridge
of using "isolated" examples and of being Ignorant of Georgia's
new law. -Beveridge answered with an impressive knowledge. CR
59:2: 1798-1799.
5 CR 59:2: 1800. 6 CR 59:2: 1801.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission
everybody says he agrees it must be stopped; 'only,1 say some,
'let us be careful about the Constitution.'" Let us wait while
the problem is being investigated.
I have heard it whispered about the corridors, and

so have other Senators, that we must not go 'too
fast'; that we are bound to have an 'investigation,'
Oh, no; let us not go 'too fast.' (There is evidence
ofl . . . slow murder . . . by the thousands. But
let us not 'hasten' to their relief 'too fast.' Let
us 'investigate,' just as the manufacturers of Eng
land asked when they were confronted with the same kind
of reform.1
The extent of apparent agreement as to the merits of child

labor legislation is in remarkable contrast with the disagree
ment which was apparent nine years later. At that time consti
tutionality was described as the "last line of trenches";^
during the Beveridge debate it might have been described as the
first line of trenches.5 By the time Beveridge formally began
his constitutional argument during the last hour of a nearly
five-hour session on the second day, not one of the many inter
ruptions had. been a clear-cut challenge on the merits of the
legislation.4 The interruptions served, for the most part, to
anticipate the argument to come.
1 CR 59:2: 1807, 2 See below p. f o b .

® Beveridge served notice that he would, discuss seme of the
stock arguments if they were raised, for example, "the widow
question, or what is known . . . as the 'widow-woman fraud' ..
. . a shameful and pitiful excuse." CR 59:2: 1808. Neither
Senator Bacon nor others accepted the challenge, although when
the District of Columbia bill was being discussed a month earlier,
Bacon had proposed excepting children under fourteen who suppor
ted a widowed mother. CR 59:2: 204.
4 In the midst of the constitutional debate, Senator Spooner
was to say, "Of course, I suppose there is no one in this Chamber
who is not opposed to child labor." CR 59:2: 1873.
Just as Beveridge was at last ready to begin, one of the
most powerful Republican leaders of the Senate arose to ask
“a single question." Nelson Aldrich was a businessman and not
a lawyer; his question laid bare what appears to have been the
central worry of those who.did not share the Beveridge enthusiasm
Does the Senator think it is possible that Congress

can constitutionally regulate the hours of labor in
a State for humanitarian reasons.1
The question was not directed to some concept of constitu
tional law nor confined to the child-labor proposal. It looked

to agitation which might come if the way were paved by satisfy
ing the present agitation. Beveridge proceeded to answer the

constitutional question and at last began what was to be more
a lecture than an argument.
1 CR 59:2; 1822.
2. How to determine constitutionality?
Beveridge's remarks might well have been entitled "What

every lawyer knows." Although a colleague, a lawyer and Repub
lican who was "decidedly favorable" to the bill, could describe
himself as surrounded by a constitutional "wall of doubt,"’1' to

Beveridge, doubt smacked of "casuistry."2 With historical back
ground and with extensive quotations from Marshall, Story, and

Supreme Court decisions, he traced the development of the com
merce clause to support his conclusions: Congressional power
over commerce was absolute; there was no distinction between the

powers over interstate and foreign commerce; regulation included
prohibition.3 He dwelled on Gibbons v. Ogden ("the case which
every lawyer has had by heart since he went to Law School"4 ) and
when he came to his most important precedent -- the Lottery Case
-- he introduced it as a case which "everybody knows."5 To
Spooner of Wisconsin, who had a reputation as a leading constitu

tional lawyer and. who was like Aldrich one of the powerful Republi
can senators, he said:
1 McCumber (N.D.), CR 59:8: 1870.
2 CR 59:2: 1823.
3 CR 59:2: 1822-1826, 1869-1883. The opposition and Beveridge
made little of the argument that the due process clause of the
fifth amendment limited the commerce power.
4 CR 59:2: 1823. 9 Wheat. 1 (1824).

5 CR 59:2: 1870. Champion v. Ames, 188 U.S. 321 (1903).
with permission o f the copyright owner. Further reproduction prohibited without permission.
06*
O f course, all I can do to convince the Senator

is to cite decisions of the Supreme Court*, and if
the Senator does not believe it is constitutional
under that authority, of course that is the end of
my labor.1
No one of the nearly dozen senators who took issue with

Beveridge on constitutionality spoke as if he- expected adverse
action by the Court; no one, for that matter, identified himself
with the Court more closely than did Beveridge. He dismissed as

amounting to “a quarrel with the Supreme Court" the remarks of
Aldrich and of Senator Knox of Pennsylvania — the latter, Attor-
ney-General at the time of the Lottery Case. Knox had attempted
to confine the Lottery Case to its facts. Senator Spooner went

further. "I think," he said, that in excluding lottery tickets
from interstate commerce, Gbngress acted "unwisely and unconsti
tutionally, although the Supreme Court held it to be constitu

tional . . . by a majority of one . . . ."
"Do I understand the Senator to criticize the Supreme Court
because it decided by a majority of one?" asked Beveridge.

Spooner replied, "Well, it was a case that I do not regard
as being an authority to build a fabric upon which would entirely

change — ." He was again interrupted and, after Beveridge had
spoken, neither pursued his disagreement with the Court nor as
serted an independence of judgment as to constitutionality but
proceeded, rather, to distinguish the Lottery Case and the child-
1 CR 59:2: 1877. For Spooner, see Dictionary of American

Biography 17: 465-466.
2 CR 59:2: 1869, 1877-1879.
labor proposal. Beveridge did not let the matter drop. Ir
relevantly he said, “The Senator has overruled the Supreme Court
of the United States in the Lottery Case and has said so frankly*
As the debate went on, Beveridge reverted to Spooner's remarks
p
as if they were a revealing indiscretion, perhaps like Senator
Bacon's description of the mill owners as "our* best people,"
which Beveridge seemed fond of repeating.

One adversary, however, spoke on constitutionality with
out knowing the decisions; and, considering Beveridge's reliance
on the Court, it is not surprising that Beveridge was moved to
exasperation. The vociferous Ben Tillman, representing the white
farmers of South Carolina, had urged Beveridge to pour forth

factual "ammunition" to fight "northern millionaires who have • .
built mills and made industrial slaves out of white children
, . . He would join Beveridge if Beveridge could prove his
measure constitutional.
Mr. Beveridge. I will undertake to prove that to

the Senator, unless he isin the condition of a
man who 'convinced against his will is of the same
opinion still.'
Mr. Tillman. I will listen.

Mr. Beveridge. The Senator has expressed his opinion
upon the constitutionality of this proposed law. Has
the Senator read the decisions of the Supreme Court
upon this question?
Mr. Tillman. Wo.
1 _
Spooner replied simply, "1 am stating my opinion about it."
CR 59:2: 1875-1876. - .
2 CR 59:8: 1877, 1879, 1882, 1883.

3 CR 59:2: 1801, 1806, 1819, 1867.
Mr. Beveridge. And yet you have an opinion upon it,
which it will be difficult for me to change, and I
have read those decisions.
Mr. Tillman. But I have a very strong opinion, based,
on general common sense —
Mr. Beveridge. Oh, well.
Mr. Tillman......... If the Senator thinks he can
convince me that I am wrong, I will listen to his
argument.
Mr. Beveridge. I will attempt to do that when I come

to it.l
After Beveridge had come to it and developed his consti
tutional argument, there followed an interchange of invective

with Tillman in which Tillman spoke as if nothing relevant had
been said. What of the Lottery Case? asked Beveridge. Tillman
who bore the self-given title of "the cornfield lawyer of the
Senate,"2 replied:
I have never read the Lottery Case, because I have

never had anything to do with these legal technicalities.
I know the common-sense proposition that because a
State might do a thing is no reason why the United
States has power to do the thing.
Beveridge repeated his jingle — "Convinced against his will,
Is of the same opinion still" — and exclaimed, "But hear the
Supreme Court. Why are Senators so impatient with the Supreme
Court?"4
1 CR 59:2: 1801-1802.
2 Tillman described himself thus on Aug. 8 , 1916 in speaking
of the past. CR 64:1: 12294. For Tillman, see Dictionary of
American Biography, 18: 547-549.
3 CR 59:2: 1872. 4 Loc. cit.
*9
.. Although Beveridge may have found the Senate impatient
with the Court, he did not find any senator who opposed the hill
and at the same time conceded that the Court would uphold it,
Beveridge would have found such a senator if he could have looked
nine years into the future, to 1916, when Tillman was to say
that he would vote against a national child-labor law because it
was unconstitutional and that he had no doubt that such a law would
be upheld by the Court,^ Were others of the opposition, however,
g
as independent of the Court as Tillman? Would they have re
mained "of the same opinion still" if through some divine aid
or an advisory opinion they could have known that the Count would
uphold Beveridge's bill? Whatever the answer, there was in 1907

no admission by any of Beveridge's opponents that the Court was
not on their side and certainly no denial that the Court had the
last word.^
Aug, 8 , 1916, CR 64:1: 1££94~1££95. See below p. toSL>

2 Of those senators who had raised, constitutional questions
during the Beveridge debate, only Overman (D, N.C.) and McCumber
(R, N.D.) were in the Senate in 1916, Overman spoke of the bill
pending at that time as absolutely unconstitutional, but he did
not appear confident that the Court would agree. See below p
McCumber neither took part in the debate nor voted,
® Nor was there such a denial in 1916, when the opposition was
divided as to what the Court would do.
3, Why opposition on constitutional grounds?
•• How did Beveridge account for the fact that he was opposed
on constitutional grounds? Were the opponents simply not qua

lified to know what was the law? Beveridge criticized the notion
that one had to be a lawyer to understand, the Constitution. (In
cidentally, of the eleven senators who raised constitutional

questions, eight were lawyers.^) He said:
Nobody knows about the Constitution but certain

'lawyers,' it seems, although the Constitution
was made for the people, and 'adopted by the
people at the polls,' as Marshall declares, and
is supposed to be anything but mysterious.2
He criticized also the Spooner resolution for encouraging the

growth of "a Junior Supreme Court" and spoke affirmatively of
2
the Senate's "constitutional responsibilities" although at
no time did the necessity arise, even hypothetically, for him

to assert that Congress might judge independently of the Court.4
Did belief in State' rights account for the opposition?
Beveridge proclaimed "profound respect" for those who believed
1 Aldrich, Tillman, and Perkins (R, Cal.) were not lawyers;

the following were: Bacon, McCumber, Spooner. Overman, Knox
(R, Pa.), Carmack (D, Tenn.), Fulton (R, Ore.), and Rayner (D, Md.)
2 CR 59:8: 1869. Beveridge, who had described Dr. Felix Adler
of the National Child Labor Committee as one of the most learned
State rights men, told of citing Dr. Adler to a senator. " . . .
I was met with this convincing reply: 'Doctor Adler' What does
he know about the Constitution? He is not a lawyer.'" Loc. cit.
3 CR 59:8: 1818.
4 Beveridge implied that such independence was impossible when

he said, that Spooner, because of dissatisfaction with the Lottery
Case, was impaled upon the horns of a dilemma. CR 59:8: 1877,
in State rights as a "political doctrine"; but here there was
no question of State rights, he said flatly. Hiss bill had
been drawn deliberately unlike the meat inspection law, which
provided for national inspection in the factories, in order to
eliminate that question.'*' Yet men were sitting up nights "con-
g
triving arguments." State rights, he had heard, was to be "the
3
excuse for killing this bill."
Beveridge did have an explanation for the use of constitu
tional arguments by the opposition: special interests were
using the Constitution as a screen. The Pennsylvania coal in
dustries and railroads, the Southern Railway System, and three-
fourths of the Southern cotton mills were reported, he said,
"even now at work in opposing this bill."4 Later:
It is a curious thing to me that every constitutional

fight that has been made in the Supreme Court has
always been made against laws prohibiting something
in interstate commerce only when some business in
terest was affected, by it.o
On the other hand, he said, no constitutional questions had

been raised, in the debate on a dozen statutes which prohibited
certain interstate or foreign commerce and did not affect busi
ness interests.® When, for example, a national quarantine system
1 CR 59:£: 1797, 1811, 1883. 2 CR 59:2: 1793.

3 CR 59:2: 1807. 4 CR 59:2} 1792.
5 CR 59:2: 1883.
6 CR 59:2: 1881-1883. These statutes were not listed until the
debate was almost completed. Court decisions had taken precedence
in the argument.
against yellow fever was under discussion the year before, a
Louisiana representative inveighed against "quibbling" about
constitutionality and declared that there was "no law strong
enough" for which he would not vote.^

The special interests which Beveridge saw behind the
screen of constitutionality were, for the most part, those
directly and adversely affected by his proposal. Beveridge did

not see other hidden interests as clearly — those which feared
his bill as a danger not to immediate but to future self-interest
Vi/here would regulation under the commerce clause end? This was
the crucial and suggestive question, more frequently asked than
questions about the similarity of interstate and foreign com
merce or the inclusion of prohibition within the meaning of re
gulation* The question arose for the first time after Beveridge
had reassured Tillman that the bill did not prevent the picking
of cotton by children. Might it not have done so? another
senator asked.
Beveridge's answer was to be repeated many times.
I know exactly what the Senator is going to ask

. . . . can we exclude the products of the farm?
Certainly we can as a matter of power; but we
never will as a matter of policy. The possible
abuse of a power is no argument against its
existence.2
Thus, he said, Congress could legislate against the labor of
redheaded girls whose products entered interstate commerce.
1 OR. 59:2: 1807. Beveridge's reference was to Davey, who had

spoken on April 17, 1906. CR_59:1: 5392e The Congressional
Record reports his complaining about "technicalities" rather
than 7'quibbling."
2 CR 59:2: 1808.
Against wheat when labor on the farm exceeded eight hours a
day? Ihe answer was the same, said Beveridge; and, he added,
he was prepared to vote on these matters as questions of policy.

". . . 1 never shall shield myself and excuse myself from vot
ing upon them with any strained constitutional construction.
The question was to recur in various forms about a dozen

times. Could Congress legislate against articles not bad in
themselves or harmful to the recipients? Against goods not made

2
by union labor? Could it prohibit all commerce among the States?
The most direct recognition — or suspicion — of the fear of
future demands came soon after the question was first raised,
when Beveridge said, incidentally:
I would not be surprised that a good deal of

anxiety about the constitutionality of this bill
is wrapped up in that very eight-hour question.
It may be that some people hope that this is
■unconstitutional, so that they will not have to
vote on it and the whole group of questions as
sociated with it.3
Loc. cit.
2 CR 59:2: 1824-1825, 1871, 1873, 1874-1875.

3 CR 59:2: 1808.
4. What restraints on Congress?
Beveridge's usual response to the eight-hour and other

questions was either to lecture to his colleagues against
confusing power and policy or to assert that Congress would
not do what they feared it would do. But, they asked, ■what
if it did? This question Beveridge would either ignore by re
iterating that Congress would not do it; or he would assert that
unwise policy could be remedied at the ballot box,

Beveridge had "the very best authority" for ignoring the
question — Senator Spooner himself, Spooner had once answered

a similar hypothetical question by saying, according to Bever
idge, "Well, it is an impossible question. Congress would never
think of passing such a law,*** But ", . . this is not a law

yer's answer," Beveridge was told, "because nothing is impossible
if we have the power." Beveridge replied, "Yes; things are im
possible to the Senator if he considers his constituents and de
sires to retain his seat.1^' For this argument also, the ar
gument that policy was subject to political restraints, Beveridge
had respectable authority — "the inspired lips of Chief Justice
Marshall," Beveridge said:
CR 59:2: 1874. To Senator Rayner, who asked about a law

directed against non-union-made goods, Beveridge quoted Spooner
and.added, "It is not to be assumed that the representatives, of
an intelligent people are going to be so foolish as to do any
thing like that suggested by the Senator," CR 59:2: 1824.
2'Replying to Rayner. CR 59:2: 1825.
J¥
After holding that the abuse of the power was no

argument against its existence, the Supreme Court,
through Mr. Justice Marshall, proceeds to tell us
where the safety lies; he proceeds to tell us where
the restraint is; he proceeds to tell us ’where we
are going to end,’ and it is the plain answer that
might occur to anyone . . . .
Here is how Chief Justice Marshall, delivering

the unanimous opinion of the Supreme Court of the
United States, disposed of this ’grave objection’
which so ’troubles* some Senators: ’The wisdom and
the discretion of Congress, their identity with the
people, and the influence which their constituents
possess at elections, are. In this, as In many "
other instances, as that, for example, of declaring
war, the sole restraints on which they have relied
to secure them from its abuse. They are the restraints
on which the people must often rely solely in all
representative governments.'
Perhaps the effectiveness of this statement as an argument
against judicial review accounted for Beveridge’s momentary
lapse in keeping "power" and ’’policy” sharply separated when
he said, "There is the answer . . . . The remedy for all of
our excesses of power is in the hands of our constituents at

2
the ballot box • . . However, a reaffirmation of Marshall’s
notion of political restraints, in a quotation from the Lottery

3
Case, confined that notion to policy. Beveridge restated the
political restraints argument many times. "Why are we afraid
of ourselves? Do we not come from and represent the people and

4
are we not answerable to them solely?"
Beveridge apparently felt no necessity to reconcile this
argument with the fact of judicial review. The argument was pre
sented as an answer to fears that the legislature might act without
CR 59:2: 1882. Words italicized appear thus in the

Congressional Record. Marshall’s words are from Gibbons v.
Ogden, 9 Wheaton 1 at 197 (1824).
2
L o c . cit.
3
L o c . cit. The quotation also stated clearly that when
Congress acted beyond its powers it was the duty of the Court
to pass judgment.
4 CR 59:2: 1.883.
wisdom. It was not designed as an answer to another fear:
what if the legislature acted without authority? That the Court
then served as a remedial agent seemed to be clear from Bever

idge 's reference to judicial review as an institution concerned
with questions of "abstract p o w e r . H o w e v e r , since in the pre
sent instance he saw no danger of adverse action by the Court,

Beveridge did not discuss the problem of power. The necessary
power, he said again, "has been upheld by decision after decision

of the Supreme Court of the United States. . . ."^ Furthermore,
any attempt by means of hypothetical questions to raise either

fears or hopes of judicial review failed because Beveridge re
solved the questions into questions of policy. And on these

questions, the Supreme Court had "absolutely refused to pass."
Did Beveridge see any likelihood that considerations of
policy might somehow affect the Court's answer to questions of
power? Beveridge's separation of policy and power was too sharp
to admit such a possibility. Furthermore, this possibility, in

its suggestion that the Court was a threat to Congressional action,
ran counter to Beveridge's assumption that the Court was an ally.

It interpreted a Constitution which was less a symbol of restraint
than it was a source of national power. The court was an agency
for the growth rather than the limitation of that power. Not
only did it serve to put the stamp of legality on applications
of that power, but also it provided the maxims and reasoned opin
ions which could be used to document the arguments for additional
national activity,
1 CR 59:2: 1874. 2 CR 59:2: 1883.

3 —
CR 59:2: 1825.
This attitude toward the Court could hardly be shared by
those who opposed new activity. On the other hand, such oppo
nents had no reason to consider the Court a direct threat. For
them as for Beveridge, the Court was an ally although perhaps an
unreliable one. Yet as supporters of judicial review they ex

ceeded Beveridge in a sense. Senator Spooner, for example, was
in a quandary in seeking grounds for judicial protection against
dangerous future legislation. He stated clearly his understanding
of the Court's action in upholding the oleomargarine tax. "...
where a power is given to Congress the discretion, the wisdom of

Congress is not subject to judicial review.'1 But if Congress
were to make an eight-hour day or union labor a prerequisite to
commerce, he asked, "Can the Court review the wisdom and discretion
of Congress?" Again Beveridge quoted the words of Spooner himself:
such questions are "impossible." Spooner seemed unconvinced.
"This question," he said, "has troubled me more than any other
question which is today mooted in the United States."’*'
The Beveridge debate ended with a stirring peroration by
Beveridge on the merits, applause in the galleries, and no action
by the Senate.2 On March 5, 1907, the fifty-ninth Congress died.
With it died the child-labor bill for the District of Columbia
and, still pending as an amendment, Beveridge's bill.
1 CR 59:2: 1874.
2 The bill was passed over on Feb. 1, 19, 27, 1907; CR 59:2:
2065, 3300, 4100.
37
D, The aftermath of the Beveridge debate
Beveridge could not, of course, have hoped for action in
the few weeks following his speech. The speech itself, however,
was printed as a pamphlet of one hundred and seventy pages and
brought a heartening response.^ To a correspondent, Beveridge
wrote;
When I first announced my determination to intro

duce this bill, I said I thought it would take
five years to pass it — it took Shaftesbury fifty
years to do the same thing in England. But so
fast was the progress that I hope to pass it next
session. However, passed it shall be, whether it
is next session or some future session. 2
Even before the end of the fifty-ninth Congress, reports Claude
Bowrers, Beveridge "was preparing feverishly to press for action
in the next."3
Beveridge re-introduced his bill on December 5, 1907 in
the 60th Congress.4 But he received no support from the National

Child Labor Committee, from organized labor, or from President
Roosevelt. The National Child Labor Committee had been divided
on the question of national action ("Practically the whole bunch

of people of the National Committee seem to be reactionaries,"
Samuel M. Lindsay wrote to Beveridge in November 1907), and had
postponed a decision -until the national investigation was com-
Bowers, on. cit., 255. ^ Quoted, loc. cit.
3 Loc. cit.
4 S. 911. H. R. 4799 was introduced on the same day. CR 60:1s
168, 184.
On Dec. 16, 1907, Brumm (R, Pa.) introduced a child-labor

tax bill for the second time. H.R. 9120, CR 60:1: 561. See below
p. 3 9 , fn. y. ’
pleted.^ In June 1910 during the 61st Congress, there appeared
at last, after prodding from Beveridge, the first volume of
the report on the condition of child and woman wage-earners,

8
a report which was to consist of nineteen volumes. Beveridge
was defeated in 1910 in the election of the 62nd Congress. Wot

until 1914, during the 63rd Congress, was committee action to he
had on a bill similar to Beveridge's bill.
During the years from 1907 to 1914, there was extant a
Congressional committee report on the subject of Congress 1 power
over interstate commerce. The report, which was issued after
the Beveridge debate, was the last word on the constitutional

question in the 59th Congress and is of special interest. The
background of the report and the report itself are examined be
low.
1 Bowers, op., cit., 264-266.
2 With regard to the course of action on the investigation,

see CR 60:1: 5785, 5801; 61:2: 6840, 8021, 8045-8046, 8146-8147;
61:3: 1086.
Beveridge did not even bother to introduce his bill into the
61st Congress. Brutnm, who had introduced a child-labor tax bill
in the 60th Congress, was not a member of the 61st Congress.
S. The dictum of the House Judiciary Committee
Although the Senate did not act on Beveridge's proposal,
Beveridge may have found some satisfaction in the inaction of

the Senate's Judiciary Committee, which had before it the
Spooner resolution.^ That resolution instructed the Committee
to report on whether Congress could prohibit child labor through
exercise of the commerce power. Spooner, Bacon and Knox were
members; yet the resolution lay before the Committee during the
Beveridge debate and until the end of the fifty-ninth Congress
2
without any official action being taken.
Although the House was spared from physical attack by
Beveridge, it also was confronted with the problem he represented.
On the floor of the House, there had recently arisen the dis
turbing implications of the bill providing for a national inves-
g
tigation. The Beveridge bill itself was in the House hopper;
and, before the Beveridge debate began, another bill was added —
the first bill providing for national regulation of child labor
through the taxing power.^
1 See p. H - - / & above.

2 One of the opponents of a national child-labor law said
in 1916 that he was "informed” that the Committee "at about the
same time found to the same effect" as the House Committee (de
scribed below in the text). CR 64*1: 1587, To others, in 1916,
stated that the Senate Committee had agreed with the House Com
mittee. CR 64:1: 2031, 12196.
3 See above p. / , fn. /.
4 H.R. 24475, Jan. 17, 1907, by Brumm (R, Pa.), "to prohibit
the employment of children in mines or factories without the
owners"thereof having a license therefor, providing an annual
tax for the employment of all such children, and a tax upon the
products of such labor." CR 59:2: 1302.
Representative Tawney seemed especially disturbed. He had
spoken more forcefully than any other member against a national
investigation, and it was apparent that as chairman of the Com
mittee on Appropriations he could now expect demands for money

to carry out the investigation. It may seem novel that a demand
for money to carry out a measure already approved by Congress and
signed by the President could raise a constitutional question.
Nevertheless, although Tawney had been far from undecided on the
matter, he moved to secure a formal answer. On the third day af

ter the Beveridge debate had ended and while the sundry civil
appropriations bill was pending, Tawney submitted for his com
mittee an elaborate and broader version of the Spooner resolution
— broader because it was not limited to an examination of the
commerce power. The resolution stated that whereas Congress had
authorized an investigation, whereas money was being called for,

whereas child-labor bills were pending, and whereas "it is impor
tant that the House be fully advised" as to Congressional power --
Resolved, That the Judiciary Committee . . .

immediately investigate aid report to the House
at this session the extent of the jurisdiction
and authority of Congress over the subject of
woman and child labor, and to what extent and
by what means Congress has authority to suppress
abuses of such labor or to ameliorate conditions
surrounding the employment of such laborers.1
There was, perhaps, no necessity for a "Whereas" explaining

why the Appropriations Committee considered itself less qualified
than the Judiciary Committee to answer constitutional questions.
1 Feb. 1, 1907; CR 59:2: 2136.
An explanation was offered by the chairman of the House Judi
ciary Committee in 1916, Webb of North Carolina, at that time
one of the leading opponents of a national child-labor law.

The members of. the Appropriations Committee in 1907, he said,
had their doubts about , . . constitutionality,

and, not being lawyers, referred, this question
to the Committee on the Judiciary, of which Judge
Jenkins was then the Chairman.1
The resolution was agreed to without discussion and was

sent to a committee made up of thirteen Republican.lawyers and
six Democratic lawyers, the Democrats all from Southern and

2
border States. Four of the members had judicial experience;
among them was the chairman, Judge Jenkins, who had been a
young county judge in the years 1872 to 1876,
In one respect, Webb had been inaccurate. Twelve of the
seventeen members of the Appropriations Committee, including
Tawney, were lawyers,® The difference between the two commit
tees was perhaps more a qualitative than a quantitative one, a
difference in expertise. Some members considered the Judiciary

Committee of the House to be "the great law committee1' or "the
chief law committee."4 Beveridge, on the other hand, had dis
Loc. cit. The members of the fifty-ninth Congress, said

Webb in 1916, took this action before discussing "expediency"
because they were "so zealous . . . in the discharge of their
sworn duty • . . CR 64:1: 1572.
2 Members of the Committee are listed in CR 59:1: 297: changes

in the Committee are noted in_CR 59:2: 108, 1184, 1214, 1744.
® One of the lawyers had been a state judge' for ten years and
was soon to become a federal judge; one of the five non-lawyers
had graduated from a law school.
4 See, for example, CR 64:1: 1577, 1587, 1595.
missed the coordinate committee in the Senate rather contemptu
ously as "a Junior Supreme Court" and attacked the assumption
that other committees and rank and file members were not com
petent to pass on constitutional questions.1

After five days, Judge Jenkins submitted a report for a
g
unanimous committee —
"after careful study and review of the
- 3
authorities," according to one of Webb's colleagues in 1916.
There was no limit to the Congressional power of investigation,

the Committee said. But it had found in the House resolution
a "suggestion" which "shows how rapidly we are drifting in

thought from our constitutional moorings." The report dispelled
that suggestion emphatically by declaring that over the labor
of women and children there was an "entire want of power."

Whatever the abuses of such labor, whatever the conditions that
needed amelioration, however much the States failed to act, Con
gress had no authority.
In fact it is not a debatable question. It would

be a reflection upon the intelligence of Congress
to so legislate. "It would be casting an unwelcome
burden upon the Supreme Court to so legislate . . . .
The assertion of such power by Congress would destroy
every vestige of State authority, obliterate Sâte
lines, nullify the great work of the framers of the
Constitution, and leave the State governments mere
matters of form, devoid of power, and. ought to more
than satisfy the fondest dreams of those favoring
centralization of power.
1 CR 59:2: 1812.
2 House Report No. 7304, 59th Cong., 2nd Sess., Feb. 6, 1907
(pp. 1-8); CR 59:2: 2393. Discussion of the report in the text
below is based on extracts presented in the debates: CR 64:1:
1572, 1574, 1577.
3 CR 64:1: 1587.
Even discussion of the problem was pernicious, the Committee
said*
The agitation of such legislation produces an

uneasy feeling among the people and confuses the
average mind as to the power of Congress and the
power of the States.
There was no discussion of the report on the floor of
the House; and, on the following day, there was no objection
to a request that it be reprinted.^ The days were to come,
however, in 1916 when the report was to appear prominently in

p
the debates. The member who was to cite it as a definitive
statement most frequently was Webb, chairman of the House Judi

ciary Committee in the sixty-fourth Congress. With notable
prescience, it was Webb who in 1907 asked for a reprinting of
the report.
1 CR 59:2: 2484.
2 See below pp.//«*» t A + ' J & s - .
II, The Palmer- Owen Child-Labor Bill — 1915-1915
A. The bill and House hearings
On the first day of the sixty-third Congress, April 7,

1913, soon after Wilson's inauguration, the Republican senator
from Iowa, William Kenyon, introduced the Beveridge bill.'*'
Within three months, four bills were introduced in the House to
regulate child labor through the interstate commerce power*

However, not until the Palmer-Owen bill was introduced by Repre
sentative Palmer and Senator Robert Owen, Democrats from Penn-
sylvania and Oklahoma, after Congress had been in session for

over ten months, were committee hearings held. The Palmer-Owen
bill, which had been drafted by the National Child Labor Commit
tee,4 proposed somewhat higher standards than those in the Bever
idge bill and, unlike the Beveridge bill, was not aimed at the
carriers. It declared unlawful the shipment by producers, manu-
1 S. 222, CR 63:1: 55.

2 H.R. 1705, H.R. 4384, H,R. 4874, H.R, 6146 introduced, re
spectively by Cullop (D, Ind.), Lafferty (Prog-R, Ore.), Taylor
(D, Col.), Cobley (Prog-R, 111.); April 7, 28, May 7, June 17,
1913; CR 63:1: 86, 745, 1371, 2071.
H.R. 4384 proposed to regulate the employment of women also.

On Oct. 10, 1913, its sponsor, Representative Lafferty, intro
duced a more extensive bill, H.R. 8826, "limiting the hours of
labor of persons" producing for interstate commerce. CR 63:1:
5579. - ‘ “
3 H.R, 12292, Jan. 26, 1914; S, 4571, Feb. 21, 1914: CR 63:2:
2356, 3742. “
4 CR 63:3: 3830.
facturers, and dealers in interstate commerce of the products
of child labor — the labor of children under fourteen in mills
and other establishments, under sixteen in mines and quarries,

and children between fourteen and sixteen who worked over eight
hours a day.^
The hearings, which were held by the House Labor Committee
on February 87, March 9, and May £8 , 1914, began without a note
8
of dissent. At the end of the second day, a witness could exult
in "this happy day, this particularly happy day, Mr. Chairman . . .
when everybody is unanimous . . . when there is not a voice heard
in opposition to any feature of the bill." Here certainly, he
added, is displayed "the wanderftiL growth and development of

our human feelings — only seven short years since Albert Bever-
3
idge . . . was ridiculed" for proposing national action.
On the first day of the hearings, the Committee heard only
Representative Palmer.^ There could no longer be any question,
1 The bill also included, as child labor, the labor of children

between fourteen and sixteen who worked more than six days a week
or before seven o'clock in the morning or after seven o'clock in
the evening. House Report No. 1400, 63rd Corg., 3rd Sess., Feb.
13, 1915, (pp. 1-50), p. 1.
2 Hearings before the Comnri ttee on Labor. House of Representatives.
on H.R. 18898, 63rd Cong., 8nd Sess., £ parts, 147 pp., Feb. 87-
May 88, 1914.
3 life*. A. E. Holder of the A. F. of L, Ibid., 81.
^ Palmer began with the argument that his bill differed "radi
cally" from the Beveridge bill because his bill put the burden
on the shjgoer rather than the carrier. As far as constitutionality
was concerned, of course, the argument was specious. Ibid., 3-4.
he said, as to the policy of the legislation: child labor was
a national evil, interstate commerce was at the root of the evil,
and national regulation of interstate commerce could end the
evil.^ The members of the Committee did not question these re
marks, They were quick, however, in drawing attention to any

implication, however unintended, that the constitutionality of
the legislation was questionable; and, in friendly fashion, they
anticipated Palmer's argument, Nolan of California, who was not

a lawyer, suggested the presentation of a legal brief. He had
introduced a bill aimed at convict-made goods, he said, and the
question of constitutionality "seemed to stick in the minds of
some of the members of this committee."^ The chairman, David

Lewis of Maryland, added, his advice: "Cou.ld you indicate a Su
preme Court case . . . so that the members of the committee and
the country may be directed to the sources of constitutional au

thority relied upon?"^
For these suggestions, Palmer was fully prepared. He im
mediately summarized the leading Supreme Court decisions and
concluded by stating that he would file a brief and present fur
ther "legal argument, because I believe that is the thing that

will give most concern to this committee," Mr, Nolan remarked,
"Not only to the committee, but to Congress"; and Palmer agreed,4

On the second day of the hearings, nine witnesses appeared
before the Committee, representing the National Child Labor Com
1 Ibid., 5, 2 Ibid., 6.
5 Ibid., 7. 4 Loc. cit.
mittee, other civic organizations, the Children's Bureau, and
the American Federation of Labor.1 The usual arguments of policy
were made, but well over half the time was spent on the consti
tutional arguments. Representative Lewis probably spoke for his
Committee when he expressed his readiness to hear "trained views"
in order to anticipate the questions that would arise in the House
and Senate.2 Expert testimony was given by the president of the
Pennsylvania Child Labor Association, Mr. J. Y. Brinton, and the

dean of the University of Pennsylvania Law School, Dr. W. D,
Lewis; and a lengthy legal brief was presented by the general

2
secretary of the National Child Labor Committee, Owen Lovejoy,
Mr. Brinton, after stating that Congress had a duty to
defeat a measure if Congress could anticipate a certain adverse
decision by the Supreme Court, discussed the cases and drew

some "incontrovertible conclusions."^ He did find, however, a
"single question” as yet undecided; and it was to this question
that a member of the Committee returned; was there any Supreme
Court decision on interstate commerce and the conditions of
production? Mr. Brinton replied;
I am perfectly frank to say I do not think any case

has been decided where the conditions of production
of an article in the United States have been considered.
To that extent there is a difference. I am frank to
admit it. There is a difference, in fact, between
this case and other cases that have gone before it.^
1 Ibid.. 11-83.... 2 Ibid., 65.

3 The brief appears ibid.. 17-33.
4 Itld., 46 and see 45-59.
5 Ibid., 52. Brinton, like Palmer, ignored the argument that
Reproduced with permission o f the copyright owner. Further reproduction prohibited without permission
Both Brinton and Dean Lewis expected, however, that the
Court would find the difference merely a factual one*'L To
Lewis, it was “entirely clear" that the Court “has adhered al
ways, and especially lately . . . to the Marshall view" — that
aside from express limitations the interstate commerce power
g
was as great as the State's power.over intrastate commerce.
The minority in the Lottery Case, he said, had "passed away";
and in upholding the White'Slave Act the year before, the Court
3
had been unanimous.
At least as far as the Supreme Court of the United

States is concerned this question is a closed question,
and therefore those of you who feel that that is con
trolling, would regard any further argument as a work
of supererogation.4
In comparison with these words, the "historical . . . .
logical" argument of the following speaker was somewhat of an

anti-climax, the argument that the States once had the power
to prohibit importations and had transferred that power to the
5
United States. After a few sympathetic questions from the
Chairman, the speaker — Mr. A. J. McKelway of the National
Child Labor Committee — proceeded at greater length to discuss
policy.6
the child-labor bill was intended to help raise standards in

the State where goods were received and was not directed solely
at the place of production. He ignored also Lovejoy's argument
(ibid., 28) that the individual consumer would be protected
against purchasing blindly and “having his principles outraged."
1 For W. D. Lewis, see Ibid., 59-70. ^ Ibid., 59-60.
3 Ibid.* 61. Hoke v. United States, 227 U.S. 308 (1913).
4 63. 5 Ibid., 73 .
6 Ibid.. 74-77.
The Committee had expected a variety of interests to
appear in opposition to the bill.’*’ But no dissenting voice
was heard until the third day of the hearings, over two months
later. Only the South Carolina cotton interests were repre
sented in opposition; and their criticism was directed solely

2
against the foturteen-year-old standard.
•*- See House Report No. 1400, 63rd Cong., 15.
2 Ibid., 10.
B. The House report
Not until almost three months after the hearings did the
Committee report the hill, on August 13, 1914;^ and not until
the following February, when hardly three weeks of life re
mained for the sixty-third Congress, was a complete report sub-

2 **5
mitted to the House. The report was unanimous, and on its
face there was no suggestion that the delay was caused by doubts
about the merits: "The fact that child labor is a national evil,
a blot upon the fair name of our Republic, requires no demon
stration and unfortunately admits of no denial.^ The problem

had become an interstate one, the report concluded, and only the
5
federal government could bring relief.
Nor did it appear that there had been doubts about consti-
g
tutionality. Ten years earlier, the Committee admitted, "a sub
stantial question might have been raised," but "this doubt has
probably been effectively dispelled by a steady current of judi-
■*" CR 63:2: 13706; House Report No. 1085. 63rd Cong., 2nd Sess.,
Aug. 13, 1914 (pp. 1-2).
2 Feb. 13,. 1915; CR 63:3: 3739; House Report No. 1400 . 63rd Cong,
On Oct. 9, 1914, Representative Taggart (D, Kans.) introduced

H.R. 1922E, CR 63:2: 16404, "to levy and collect an additional
income tax upon the annual incomes of persons, firms, and corpora
tions employing child labor."
s The one southerner on the Committee, Watson of Virginia, did
not dissent from the report. However, in the House Watson voted
nay.
4 House Report No. 1400, 63rd Cong., 6.
5 Ibid.. 7-9.
6
Less than two of twelve pages in the body of the report con
cerned constitutionality.
cial thought, running in the same direction as that current of
judicial thought, running in the same direction as that current

of public opinion" favoring national action.
Did reference to these sources of authority imply that Con

gress had little responsibility for reaching independent conclu
sions as to constitutionality? The Committee reported that it had

given "careful attention" to constitutionality; however,
Needless to say . . . your committee did this, not

with a view to arrogate to themselves the duty of
passing judgment upon a problem of constitutional law,
but rather with a view of provoking discussion and
informing themselves and Congress as to the general
attitude upon this problem of experts familiar with
the authorities and the trend of judicial thought.2
In keeping with this disclaimer, the Committee made no at

tempt even to summarize in its own words the arguments made
at the hearings.0 Instead, it included the Brinton-Lewis-
Lovejoy testimony in a lengthy appendix^ and incorporated into
its report the summary statement of Mr. Palmer at the hearings.
The Committee did express its agreement with the expert testi
mony, but again it spoke in tvords of self-abnegation. 5
Ibid., 14. The Committee reported that it had been most

strongly impressed by the decisions on the Pure Food and Drug
Act and the White Slave Act. Loc. cit. Hipolite Egg Co. v.
United States, 220 U.S. 45 (1911); Hoke v. U.S., cited above.
2 Ibid.. 13.
3 However, in repeating Mr. Palmer's specious argument that
the bill differed "radically" from Beveridge's proposal, the
Committee added an-expression of its own belief: Beveridge had
aimed his proposal at the carriers "evidently" in order to
strengthen its constitutionality, and the constitutional ob
jections to this "were no doubt largely responsible for its
defeat." Ibid., 2-3.
4 Ibid., 16-50. 5 Ibid.. 13.
C. On the floor of the House
Two days after the complete committee report had been
submitted to the House on February 15, 1915, Representative
Palmer near the end of a long afternoon moved to suspend the

rules by a two-thirds vote and to pass the bill.'*’ The vote to
second this motion — 212-45 —
showed clearly the futility of
2
opposition and was a forecast of the final vote: 233-43,
Nevertheless, a half-dozen representatives of South Carolina,
Georgia, and Alabama, led by James Byrnes and J. Willard Rags

dale, both of South Carolina, were in active opposition; and
for several hours there was much parliamentary wrangling, re

peated points of order as to the presence of a quorum, motions
to adjourn, divisions, and roll calls. Had the opposition suc
ceeded, there would have been no opportunity to pass the bill on

a suspension of the rules until the last few days of the session.
As it grew late, more members walked out than returned;
and, in the presence of no quorum, Palmer himself finally moved

adjournment. This was defeated, however, by 114 votes to 93,
and a motion was agreed to that writs be issued for the arrest
of absent members,3 Again, however, a quorum appeared; and to
applause from the Democrats, Palmer announced that the Democratic
caucus scheduled for eight o ’clock was being postponed and asked
that members "stand by party pledges and by the little children
of the Nation • . . for just a few minutes" so that the bill
could be passed.4
^ CR 63:3: 3827, ; • 2 CR 63:3: 3830, 3836.
3 CR 63:3: 3832-3833. 4 CR 63:3; 3834.
Although there was further delay before the opposition
gave in, Byrnes made use of only a part of the twenty minutes
allotted to him. His own remarks were brief: he argued for
States' rights, against federal usurpation, and about the
dangers of interpretation. He made no explicit statement that
the bill was unconstitutional, nor did he refer to the Court or
to cases.\
For Palmer, the only problem was that of holding a quorum,
and he said nothing about constitutionality. That reassurances
on this matter were unnecessary seemed implicit in his reminder

to the House that the three party platforms were for child-labor
legislation*2 "The country is for it," he said, "as it is for
1 CR 63:3: 383S.
p
Speaking of the bill, Palmer said that it was in the plat
forms of the Republican, Progressive, and Democratic parties.
CR 63:3: 3834. Hone of these platforms, however, had explicitly
declared in 1912 for a national child-labor law. Porter, on.
cit., p. 320ff. Palmer went on to say that the parties had de
clared* "for this kind of legislation." CR 63:3: 3834.
The Progressive party had pledged in 1912 "to work unceasingly
in State and Nation" for a number of reforms, including the pro
hibition of child labor and the establishment of an eight hour
day for women and young persons. Another objective which was
listed in the platform was "the fixing of minimum safety and
health standards for the various occupations"; and with regard
to these particular standards, the platform spoke of "the exer
cise of the public authority of State and Nation, including the
Federal Control over interstate commerce, and the taxing power. .
. ." Porter, op. cit.. 338, In an earlier section, the party
pledged itself to meet national problems with national action
"up to the limit of the Constitution, and later by amendment of
the Constitution, if found necessary." Ibid., 336.
The Democratic platform of 1918, like that of 1908, con

tained a special section on State rights and indirectly denounced
any national regulation of hours. Ibid., 275, 322. The Republi
can party, straddling the question of a national child-labor law,
pledged itself to "strive, not only in the nation but in the
several States, o . . to limit effectively the labor of women and
children . . . Ibid.. 352,
very few things in either branch of Congress to-day.1,1 Palmer,
like Byrnes, used only a part of his twenty minutes. He yielded
to only one other speaker, Irving Lenroot, Republican of Wis
consin, who regretted that the three minutes allotted to him

was not enough in which to discuss constitutionality.2
Many members may have been unconcerned about the bill (93
among 207 had voted for adjournment). But on the final roll
call only 43 members voted nay; and of these 35 represented six
southern States.3
Three days after the House had voted to pass the Palmer-
Owen bill, members who wished to discuss the bill interrupted
debate on another measure at various times during the day; and,
as a result, there was more discussion of the bill after its
passage than before.4 The first remarks, on the merits, were

by a member who had not spoken earlier because of "the lateness
5
of the hour," he said, and "the filibuster." Shortly afterwards,
Tribble of Georgia, who had tried to defeat the bill, interrupted
to assert that the bill had been completely new to him. Although
the opposition had not used all its time, as Palmer soon reminded
him, Tribble protested that the bill had been rushed through the
House. The brunt of his protest, however, was that the bill was
"the most flagrant violation of constitutional rights of any bill
that has passed this House since I have been here. It absolutely
1 CR 63:3: 3834. 2 CR 63:3: 3835-3836.

3 CR 63:3: 3836. . ; , 4 Feb. 18, 1915.
5 Knowland (R, Cal.), CR 63:3: 4022-4023.
absorbs all State rights • • . .,'1
Palmer, in reply, did not take up the challenge of con

stitutionality, He dismissed as “bosh11 Tribble's exaggerated
interpretations of the bill and ignored warnings that the

future would see such legislation as a national eight-hour day.
2
“It is true," he admitted, that the bill “was not discussed at

any great length in the House." But, he added, fuller discussion
was unnecessary in the case of a measure with such overwhelming
support. He noted again the hearings, the report, and the House
vot e
Later, when the regular course of debate was again inter
rupted, Palmer was forced to comment on the constitutional issue.
Bartlett of Georgia, in some impassioned and rambling remarks,
stated: that he favored protecting the children but not by laying
hands on "the sacred ark of the covenant." In fact, he said,

during twenty years in Congress, he had "time and again" seen
Jefferson's fears about the distortion of the commerce clause
coming true. The implications of this attitude were examined by

the representative from Kansas:
-1- Only parenthetically did he refer to the merits: "Besides,

there are some provisions in this bill I can not espouse, even
by State enactment." CR 63:3: 4033. For Tribble's remarks, see
CR.63:3:. 4033-4035. Tribble had been in the House for four years.
^ The precedent would also be established, Tribble had said,
"compelling education of all races. . . • The negro matures
rapidly and makes a good farm laborer at 12 years of age."
3 CR63:3: 4034-4035.. Palmer stated that opposition votes
came from only three or four States. The fact was that thirteen
States were represented among the forty-three nays.
^ For Bartlett's remarks, see CR 63:3: 4059-4060.
Mr. Murdock. I realize the gentleman’s sincerity,
but does the gentleman expect the Supreme Court of
the United States to hold the child-labor law un
constitutional?
Mr. Bartlett. I expect the Supreme Court of the
United States to administer the law as it has
heretofore declared it, and to say that you cannot
exercise the interstate-commerce clause of the
Constitution to regulate the police laws of the
States.
Mr. Murdock. But if the Supreme Court holds that
it is constitutional, what then?
Mr. Bartlett. Then the people will have to submit
to it.
Mr. Murdock. And in that event we would have had
hold of the right horn of the dilemma and the
gentleman of the wrong horn.
Mr. Bartlett. That does not make it right. I
decide questions of constitutionality by my own
convictions and not by what the Supreme Court or
somebody else may say. I am the judge, and not the
Supreme Court.1
Bartlett's statement was clear enough; what was not clear was
the extent to which the opposition, as represented by Bartlett,

would,admit that in this.instance it was acting independently
of the Court.
For Palmer, who replied to Bartlett as one Democrat to
another, there was no doubt that the Court, which had "time
and again" said what the Constitution meant, would uphold the
law. "Real constitutional lawyers" had made this clear "in the
light; of the opinions of the Supreme Court, without being pre-.
judiced by their own individual opinions upon its political and
economic, phases"; whereas,
1 CR 63:3: 4060.
The trouble,with the gentleman from. Georgia is that
he comes from a school of lawyers who interpret the
Constitution according to their own preconceived
notion of what the Constitution ought to mean in
stead of according to what the Supreme Court says
it does mean.l
Palmer, on the other hand, was not — in his own words — "a
great constitutional lawyer"; and, after a passing reference
to his many years of practice in cases involving constitutional
questions, he concluded that he would not argue about the Con
stitution.2
Bartlett — as if to erase the implications of his earlier

remarks — replied with comparable modesty, without affirming
a right to independent judgment as to constitutionality, and
with no suggestion of unconstitutional behavior by the Supreme
Court.3
. . . I do believe, and, so far as I can judge

from what.the Supreme Court has decided in other
Cases, I am confident they will hold the bill . . .
unconstitutional, if it ever becomes a law. And
believing that,' in construing the Constitution of
the United States, it is my duty . . . to vote
against it.
Palmer had referred to the Lottery Case and to the prohibition

of lottery tickets as a convincing analogy. Bartlett, in his
1 CR 63:3: 4069.
2 CR 63:3: 4069-4070. Palmer was weak, in comparison with the
Beveridge of 1907, when he discussed the merits of the bill on
the following day. Having learned just recently about the new
law in Bartlett's State of Georgia setting a fourteen-year-old
age limit, Palmer praised it as a law "liberal, just, fair, and
equitable." Yet it excepted children over twelve who supported
widowed mothers or were independent orphans. CR 63:3: 4122.
3 CR 63:3: 4070.
reply, buttressed his argument by referring to one case in
which the Court had "distinctly decided that they would not
decide" that Congress could prohibit the transmission of any
legitimate articles. That case, said Bartlett, was the Lottery
Case.-1-
D. In the Senate
The Senate committee which considered the bill held no
hearings and in two weeks reported the bill favorably with two
minor amendments. The report was brief, and in one sentence
the committee expressed its belief that Congress had power to

act "although the constitutionality of such legislation is con-
troverted by some." Brevity was just as well; the sixty-third
Congress came to a close three days later.
Loc. cit. Bartlett was, unfortunately, absent during the

more extended debates in the next Congress. Two weeks after
his interchange with Palmer, he completed twenty years as a
member of the House. He had not sought renomination in 1914.
2 Mar. 1, 1915; CR 63:3: 4911.

3 Senate Report Ho. 1050. 63rd Cong., 3rd Sess., March 1, 1915
(pp. 1-2)',. p. 2 .
The First Child-Labor Law — 1916
I. The History of the Bill
A. Introduction
In 1907 and 1915, passage of child-labor bills had proved

abortive. During the long session of the sixty-fourth Congress,
however, after a gestation period nearly as long as the ten
months of that session, a child-labor bill at last became law
on September 1, 1916.1 During these months, Congress was busy
with problems of defense and neutrality and, especially in
February and March of 1916, with the German submarine campaign.2
During the spring, the nomination of Louis Brandeis to the
Supreme Court aroused prolonged controversy. Toward the end of
August, there was further domestic excitement; the presidential
campaign was beginning and, in the closing days of the session,
Wilson was confronted by the immediate threat of a national
railroad strike. That threat was met by a special eight-hour
law, the Adamson Act, which was enacted three days after intro
duction of the bill in Congress. The Supreme Court was to uphold
the Adamson Act; the Child-Labor Law, however, on June 3, 1918,
was declared unconstitutional.
On the second day of the session, December 7, 1915, Senator
Owen of Oklahoma re-introduced the bill which had passed the
1 39 Stat. 675
2 See J. M. Leake, "Four Years of Congress," American Political
Science Review 11: 252-283 (May 1917).
60
House in the preceding Congress.-1- A month went by, and the
bill was introduced in the House by Edward Keating, a Colorado
Democrat and newspaper m an who had taken the place of Palm er
as sponsor.2 Meanwhile, two new child-labor bills had appeared;
and three bills had been re-introduced, including the Beveridge
bill and a similar bill once advocated by the Progressive Party,3
All were based upon the commerce power.4 It was the Keating-
Owen bill, however, which was to become law. Three days after
it had been introduced in the House, hearings began.
The movement of the bill through Congress will be examined
first. What support did the bill have and what opposition?
What forces governed the speed of the bill through Congress?
How extensive was deliberation and discussion? How important
were constitutional considerations? This last question will
require an examination, secondly, of all that was said in com
mittee and on the floor.
1 S. 1083. Congressional Record 64th Cong., 1st Sess., p. 90.

On the same day, in his message to Congress, President Wilson said
nothing about child-labor. CR 95-100
N o t e ; Unless otherwise noted, the Congressional Record for

this session will be indicated by CR in this chapter.
2 H.R, 8234, Jan. 7, 1916, CR 698.
3 The new bills were introduced on Jan. 4, 1916, CR 470: H.R.

6865, by Dallinger, a new Republican member from Massachusetts,
and H.R. 6866, by Raker (D, Cal.). Bills were re-introduced as
S. 580, the Beveridge bill, by Kenyon (R, la.), Dec. 7, 1915,
CR 82; H.R.666, b y Copley (R-Prog., 111.), Dec. 6, 1915, CR 28;
H.R. 6868, by Taylor (D, Col.), Jan. 4, 1916, CR 470.
4 Representative Taggart (D, Kans.) did not re-introduce his

bill, which utilized the taxing power.
6/
B. House and Senabe Hearings
Hearings were held in January by the House Committee on

Labor and in February, after passage of the bill in the House,
by the Senate Committee on Interstate Commerce.-*- All told, the
open committee meetings took about thirty-one hours on nine days.
Although the hearings were fairly extensive, the lack of wide
spread opposition was remarkable. Of the interests affected by
the bill, only the southern cotton-mill manufacturers were di
rectly represented.2 Under the direction of Mr. W. W. KItchin,
1 Hearings before the Committee on Labor. House of Represent

atives . on H.R. 8234. 64th Cong., 1st Sess., 317pp. Jan. 10-15,
1916. Hearings before the Committee on Interstate Commerce. U. S.
Senate. on H.R. 8234. 64th Cong., 1st Sess., 2 parts, 319pp. Feb.
15-21, March 17, 1916.
Note; Henceforth in this chapter, these hearings will be
cited as House Hearings and Senate Hearings.
On February 21, the Senate Committee after five meetings
adjourned sine die. On February 24, Kenyon (R, la.) arose on the
floor of the Senate in order, he said, to counteract "some influ
ences that are being brought to bear against the bill." Kenyon
did not provide specifications; but he did refer to the Senate's
investigation of lobbying in 1913, which had uncovered "a system
of attempted corruption," and read letters which associated James
Emery, "the chief constitutional arguer now against the bill,"
with an-êffort to secure the re-election of Judge Jenkins of Wis
consin. Jenkins, as Kenyon pointed out, was chairman of the House
Judiciary Committee which had reported unfavorably on the consti
tutionality of the Beveridge bill. See CR 3021, 3044-3045 and
below p .
On March 17, the Senate Committee met for an additional session
and heard some new opposition: two officials of the National Con
gress of Mothers, claiming over 100,000 members, urged further
study In the States and postponement of the bill for a year. Senate
Hearings. 291-302.
2 At the end of the Senate Hearings, the chairman introduced two
letters asking for exemptions for the canning industry. Senate
Hearings. 314-315.
a former governor of North Carolina and a former member of Con
gress, there appeared delegations of eleven and then of six wit
nesses from North Carolina, South Carolina, Virginia, and Alabama
However, at each hearing there was opposition also from the
National Association of Manufacturers in the person of James A.
Emery*
Emery, who said that members of the N. A* M. employed few
persons under sixteen, found the standards of the bill reasonable
but "the policy" of the bill, its "principle of control," was
"revolutionary*"2 Kitchin agreed with Emery that the bill was
unconstitutional, but he agreed also with his witnesses that
federal action was unnecessary, that the child laborers were
comparatively well taken care of, and that adjustment to the
eight-hour requirement would do "great damage" to the m i l l s .5
Both men made elaborate constitutional arguments before each
committee and joined issue with Professor Thomas I* Parkinson of
the Columbia University Legislative Drafting Bureau, which had
been retained by the National Child Labor Committee.4 Kitchin
1 Representative James Byrnes and two other Congressmen from

the Carolinas appeared briefly before the House Committee to
testify that the operatives of the cotton mills were opposed
to the bill. House Hearings, 76-78. See below p. in. /,
2 See ibid., 158, 176; Senate Hearings. 241, 280, 281.
3 House Hearings , 12-13, 153.
4 See The Child Labor Bulletin, vol. 3, Nov. 1914, p.15.
63 f
was prepared to discuss constitutionality “very fully,** he said,
because he assumed that the House Committee, “composed largely of
lawyers," would desire such discussion*1 Later, before the same
committee, ESnery attempted to proceed in a somewhat less technical
fashion for the sake of the non-lawyers2 — a category which
covered only four of the fourteen members of the House Committee
and an even smaller proportion of the Senate Committee.3 The
non-lawyers, however — Representative Keating, for example —
were not reticent about probing into testimony on constitution
ality.4
How interested in constitutionality were committee members
during the hearings? It may be observed that more members of
the House Committee asked questions on constitutionality than
on policy. On the other hand, policy matters consumed over two-
thirds of the nearly six-hundred pages which record the hearings
1 House Hearings. 12. Later, the Chairman incorrectly observed

that "only a small number" were lawyers. Ibid.. 15. His remark
may have accounted for the note of respectful condescension on
the part of Eknery.
2 Ibid.. 161.
3 Three members of each committee had also been Judges. Co

incidentally, the three signers of the House Committee's minority
report were that committee's former Judges.
4 The readiness of Keating and another non-lawyer, Representative

Nolan (Prog., Cal.), to question the reliability of authority, for
example the authority of former President Taft, seems to have been
due in part to the lesson of Taft's fallibility in vetoing the
Webb-Kenyon bill in 1913 on constitutional grounds. The act was
passed over his veto and was understood by Keating and Nolan to
have been upheld by the Supreme Court. The issue was still before
the Court, said Emery. "At least, the Supreme Court has not knocked
it out yet," Keating replied. House Hearings. 146-147, 174-175.
(Seven months earlier, i n June 1915, the Court had applied the Webb-
Kenyon Act: but not until the following year, 1917, was the con
stitutional issue discussed at length and with approval.)
*> ■
of both committees* Quantitative measurement, however, is mis
leading, even if it is assumed that the language of policy can
always be distinguished from that of constitutionality, What is
clear is that a majority of the members of each committee demon
strated an active concern about constitutionality and in their
questioning were as keen about that problem as about policy*
"I think Members of Congress understand their duties very well,*'
the Chairman of the House Committee remarked during an argument
between Parkinson and Emery on the nature of Congress' constit
utional responsibilities, "and do not need any suggestions from
either of the gentlemen here with regard to that."l
^ David Lewis (D, Md.), Ibid.. 207.
65
~
n. (Vwnmi.ttee Reports
Four days after Its hearings ended* the House Committee
submitted a report which was, in the main, a replica of the
report prepared for the preceding C o n g r e s s O n this occasion,
however, a minority report was also submitted, signed b y Watson
of Virginia, who had not dissented in 1914, and two members of

g
the Committee from Tennessee and Alabama. In regard to consti
tutionality, although the recent hearings had been marked by
conflicting testimony in which the Committee's members had shown
sharp interest, the majority simply requoted some of the para
graphs from the earlier report, which had been timid about the
Committee's function.® In place of Representative Palmer's
statement, the report incorporated an extract from Professor
Parkinson's argument and referred to his full testimony and that
of Kitchin and Emery in the published hearings.4 For good meas
ure, the constitutional arguments of Brinton and Lewis during
the 1914 hearings were included in the appendix.
House Report No. 4 6 . 64th Cong., 1st Sess., Jan. 17, 1916
(pp. 1-16; Appendix pp. 17-41), hereafter in this chapter cited
as House Report. The report contained a new section on the recent
hearings and another section, "Evidence of popular sentiment,"
which concluded that the bill was not "aimed at the South." For
the earlier report*, see above p. SO. _
2 House Report No. 4 6 . Part 2 (pp. 1-12), hereafter i n this

chapter cited as House Minority Report. The other dissenters
were Houston (D, Tenn.) and Alm’ o n (D, Ala.).
3 House Report. 13-14.
4 Ibid.. 14-16. Without indicating whether it could be adapted

for use as a constitutional argument, the Committee in a new
section following the section on constitutionality presented an
argument of the National Child Labor Committee which was usually
ignored by the legal experts — that the consumer should be pro
tected from "unwitting purchase." Ibid., 16.
i
The minority report criticized the majority “for embarking
the ship of state upon a new and untried sea • • • offering only
the speculations of a legal mariner drafted from the cloister of
the university,1,1 According to the minority, the majority report
hflfi offered no legislative or judicial precedent; furthermore, it
had stated that a discussion of constitutionality "would serve
no useful p u r p o s e * T h i s neglect of "solemn duty" the minority
proceeded to remedy by offering the usual constitutional arguments
and authorities buttressed by a list of the members of the House
Judiciary Committee of 1907 in addition to an extract from that
Committee's r e p o r t in their final argument, however, the dis
senters invoked not respect for the past but fear of the future:
Will the legislative lion, having once tasted his

strength, lie down to rest by the door of the factory
and at the mouth of the mine, or will he rise up to
extend his conquest to the forest and in the field?4
Although the minority's constitutional argument filled
almost all of the report's dozen pages, this argument may well
have been incidental; for the minority, believing that "adult
and adolescent" must continue to pay the penalty of the "stern
decree pronounced • , . in the Garden of Eden," denied that child
1 House Minority Report, 5.
2 Ibid,. 4, In addition to quoting from well-documented testi

mony, the majority itself, in reprinting part of the earlier
report, had stated that it was "strongly impressed by • • , the
broadening view of the powers of Congress under the interstate
commerce clause, a view emphasized in a number of recent cases
• • • particularly those cases bearing upon the lottery act, the
food and drugs act, and the white slave act," Ibid,. 14.
3 Ibid.. 6. 4 Ibid.. 11.
67
labor was a great national evil and opposed the passage of a
national bill even if it were conceded to be constitutional
The Senate Committee reported a substitute bill a month
after hearings had ended. The bill prohibited the shipment of
the products of plants using child labor rather than the products
of child labor itself.2 Such a bill, it was argued, would be
less difficult to enforce.3 There is no evidence in the hearings
or in the report that this and other changes were made in order
to strengthen the constitutionality of the bill Following a
discussion of the changes, the report was divided into nearly
equal parts for the answers to two questions: was the bill
"meritorious" and was it constitutional? The first question was
answered as thoroughly as it had been by the House Committee.3
But in regard to constitutionality (described as "the principle
^ House Minority Report, 2-5, 11.
^ Senate Report NO, 556. 64th Cong., 1st Sess., April 19, 1916
(pp. 1-23), hereafter in this chapter cited as Senate Report.
The Senate version prohibited shipment in foreign as well as
interstate commerce. For other changes, see below p. 77*78, For
the texts of the House and Senate bills and a discussion of them,
see ibid.. 1-6.
There was no minority report although the ranking Democrat

on the Committee was Ellison D. Smith of South Carolina.
3 Ibid.. 4-5.
4 Can one bill be more constitutional than another?

The Committee denied that the Senate version was less clearly
constitutional than the House bill. On the contrary, the Commit -
tee ventured the opinion that if there were any difference, the
opposite was true: the commerce power was wider than the power
to prohibit things injurious in themselves; the Senate version
did not imply that the goods were themselves injurious but was
directed more clearly at a broad evil corresponding to the breadth
of the power; therefore, perhaps, the substitute bill was more con
stitutional — a conclusion that did not follow unless one could
hold that constitutionality varied with the extent to which power
was exercised (or unless one were thinking not of constitutionality
ground*1 of opposition), where the other Committee had spoken
briefly and with humility, the Senate Committee spoke at length
nwri with authority* After summarizing Parkinson's argument in
four sentences, it proceeded in over four pages “to state briefly
several basic principles that, in its opinion, are no longer open
to controversy" — that the commerce power was complete except as
limited by the fifth (and not the tenth) amendment, that it could
be exercised for the public welfare, and that it included pro-
hibltion.*1, "In the final analysis," said the Committee, the
constitutional question was one of reasonableness; and the bill
was reasonable* The grounds for this conclusion were not clearly
delineated although they appeared to be three: judicial and legis
lative precedents, “the preponderant moral sentiment of the com
munity," and the fact of "the practical inability" of the States
to stop a national evil like child labor*2
but of the Court). Ibid .. 22-23* For discussion on the floor,

see below pp.
5 Ibid.. 7-16
1 Ibid.. 16-21
2 Ibid.. 20-21. The "inability" of the States was relevant to

the constitutional argument that between Congress and the States
there could be no twilight zone of impotence, an argument with
which Query of the N. A. M. disagreed.
6?
D. On the floor of the House
The Keating-Owen bill was discussed in the House Committee
of the Whole on two successive Calendar Wednesdays — January 26
and February 2 — and was passed by a vote of 337 to 46.^ From
the beginning, passage of the bill was assured — it was "a fore
gone conclusion," said the manager of time for the opposition.2
Following two hours of general debate, consideration of the bill
began under the five minute rule.3 Thirty-seven amendments were
proposed, nearly all b y Southern Democrat s.4 Many of the proposals
would have weakened or emasculated the bill, but over half were
designed to embarrass the majority or to exploit its fears.5
However, the extraordinary majority for the bill guaranteed the
defeat of any amendments intended, in Keating*s words, "to muti
late" it.6 Debate under the five minute rule was, therefore,
mainly an opportunity for some fifty members, most of them for
the bill, to speak for the record.
-*■ The constitutional features of both the House and the Senate
debate are discussed in Part III. For an analysis of the vote,
see below p. $t-8c2-
2 Watson (D, Va.), CR 1536.
5 At the end of the first day's debate, two-thirds of the

members present approved a privileged motion that consideration
of the bill continue on Calendar Wednesdays until disposed of.
CR 1607.
4 All amendments were defeated except one (to except "canning

clubs"), proposed b y Clark (D, Fla.) and modified by Howard (D, Ga.);
Clark-voted against the bill and Howard for it. CR 2027-2029.
Three Republicans failed in minor attempts to strengthen the bill.
CR 1600-1602.
5 See below p. 6 CR 1599.
70
The opposition continued to employ delaying tactics. But
no matter how many dilatory motions, quorum calls, and points of
order were thrust forward, the hi-partiean majority was always
in control and could afford some patience. When a Republican,
Moore of Pennsylvania, joined a leader of the opposition in
demanding tellers on a protectionist amendment, the Republican
minority's floor leader, James Mann, remarked, "I am willing to
stay a little longer while the gentlemen filibuster. So united
were the majority and minority leadership that during the dis
cussion of an amendment offered by a Republican member to strengthen
the bill, Mann interrupted to advise the managers to start moving
the bill along toward the final vote.2
1 CR 1603. 2 CR 1601.
r
7/
e . June to August — 1916
On June 3, about six weeks after being reported from com
mittee, the bill was reached in the Senate's Committee of the
Whole. Senator Overman objected in the name of "other Senators
who are bitterly opposed" and suggested that discussion be post
poned until December.1 But the bill was passed over without
the setting of a future date for consideration.
A few days later, the Republicans met in national conven
tion. In 1912, they had included in their platform a lengthy
statement of constitutional principles and had straddled the
question of child-labor legislation. Now, however, a platform
was adopted which was more succinct; it announced, as to prin
ciples, "We believe in American policies at home and abroad,"
and it asked for "the enactment and rigid enforcement of a Fed-
eral child labor law."
A week later the Democratic national convention also en
dorsed such a law. In 1908 and 1912 the platform had included
a special section on States' rights and had indirectly denounced
any national regulation of hours. In 1916, that section was
omitted, and the platform called for "speedy enactment of an
effective Federal Child Labor Law."3
1 CR 9234.
2 Kirk H. Porter, National Party Platforms. 395, 402.
3 Ibid.. 383. When the child-labor plank was proposed at the

Democratic convention, according to the Greenville (Mississippi)
Democrat. as quoted in CR Appendix 1807, "not one of those 'cotton-
mill Senators' raised a chirp against it.- Then was the time, and
the party convention was the place, to oppose such a measure as
On July 15, the Democratic caucus met but did not include
the child-labor bill in a list of that session*s imperative
legislation.1 This victory for the Democrats who opposed the
bill was also a political advantage for the Republican opposi
tion since it meant a probable delay on the bill until after the
November election* On July 17, in spite of warnings of a party
revolt, Wilson made a surprise visit to the Capital and asked the
Democratic steering committee that the bill be passed before the
session ended.2
At the time of Wilson*s move, negotiations had been in pro
gress with the Republican leadership to have the bill considered
in December.® But after Wilson had acted, the Republican oppo-
unconstitutional or violative of party principle."
The Socialist platform*s labor planks for that year were

little changed: the mini m m age for employment was raised from
sixteen to eighteen years* There was, also, a repetition of de
mands for the abolition of the Supreme Court's power over Con
gressional legislation, majority-vote amendment of the Constitu
tion, and the calling of a new constitutional convention* Ibid* .
408 , 411.
The Prohibition party platform endorsed a child-labor law

for the third time and declared support for the eight-hour day
and six-day week* Ibid.. 393.
^ New York Tim e s . July.16, 1916, p. 6.
2 Ibid.. July 19, 1916, p. 6. Two days later the bill was
reached on the Senate's calendar but again was objected to by
Overman. CR 11281. On that day, also, the steering committee
decided to submit Wilson's request to the caucus. New York Times.
July 20, 1916, p. 12.
See below p. for Wilson's earlier opinion of the constitu

tionality of a child-labor bill.
3 New York Times. July 26, 1916, p. 3.
sition could hardly afford to remain quiet. On July 20, the
minority floor leader, Senator Gallinger of New Hampshire, urged
speedy action on the pending appropriations bill in order to
clear the way for child labor; and three of his followers pressed
the majority for information about the status of the bill.^
These maneuvers led Senator Hardwick of Georgia, who was
the most categorical of the bill's opponents, to attack Gallinger
on the following day for playing "party politics."2 No one had
yet arisen on the floor of the Senate to assert flatly that the
bill was unconstitutional or to announce that there would be
determined opposition to its passage.^ Now, however, Hardwick
stated that the bill was "flagrantly" unconstitutional and made
it clear that he would have much to say later. He concluded with
a seemingly irrelevant plea that there should also be discussion
of the immigration bill.^ That bill, which was pending, had once
been vetoed by Wilson, who was firmly opposed to the inclusion
of a literacy provision. The relevance of Hardwick's remark was
obvious when, five days later, a Republican senator gave notice
that he intended to offer the immigration bill as an amendment to
the child-labor bill.5
1 CR 11321-11322• On August 8, the day the bill was passed in

the Senate, Gallinger claimed that the Republicans had insisted
on no delay as soon as the Democrats had announced a low priority
for the bill. CR 12301.
2 CR 11370-11371. To the reminder of Kenyon (R, la.) that both

major party platforms had endorsed a child-labor bill, Hardwick
replied, "I have sworn to support the Constitution of the United
States, and not the party platform." CR 11372.
3
Hardwick had spoken only briefly during the discussion of
Kenyon's speech on February 24, 1916. Overman and Brandegee had
asked unsympathetic questions. CR 3047, 3053-3055.
4 CR 11372. 5 Borah (Idaho), CR 11628 and see 11792.
7*f '
On that day, a N e w York Times headline had announced; "Child
Labor B i l l ’s Passage Is Assured."1 The Democratic caucus had met
and decided, after a lengthy and apparently bitter debate, that
the child-labor bill should be passed before adjourned# Also, the
caucus defeated an effort to add the immigration bill to the list

g
of imperative legislation.
The new priority was endorsed by Gallinger, who said that
the minority was "quite as anxious" as the majority about the bill.'5
Nevertheless, there was some fear that the bill might be endangered
— and, incidentally, the President embarrassed — by the attach
ment to it of the immigration bill, which a bi-partisan majority
was also anxious to pass.4 Hardwick frankly admitted the charge
that he hoped the child-labor bill would be defeated b y the addi
tion of an amendment obnoxious to the President.® But there was
one uncertainty in Hardwick’s mind, and he wondered aloud: could
he vote for a combination measure which was partly unconstitu
1 July 26, 1916, p. 3.
2 At the caucus, Kern, the majority leader, had read many tele
grams. L o c . cit. Three days earlier in the Senate he had read
into the Record thirty telegrams from all sections of the country.
Many expressed a simple sentiment: "Party will be held respons
ible in November election." One correspondent from Niagara Falls
appeared unmoved by the Washington summer. She telegraphed: " . . .
Senate Chamber is hot, but how about children in mills. Vote-yes."
CR 11425-6.
3 July 26, 1916; CR 11591.
4 See the appeal of Reed (D, Mo.) to "the real friends of the
child-labor bill . . . not to jeopardize it." July 29, 1916;
CR 11797. For an unscheduled debate, see CR-11791-11798: 11803-
11807.
However, Republican strategy appeared to be directed more to

ward demonstrating support for the immigration bill than obstructing
7S~
tional in order to defeat the unconstitutional part?^ This pro
blem he did not resolve, ftor did the necessity arise to resolve
it* At another meeting of the Democratic caucus, a majority
pledged itself to vote against any effort to add the immigration

g
bill as an amendment to the child-labor bill.
the other. See the remarks of Borah (Id.) and Poindexter (Wash.),
CR 11792.
5 "The Senator from Georgia," said Reed, "is against the child-
labor bill, and he is fighting-it tooth and-nail, beak and claw;
and, smart, keen lawyer, as he is, he hopes to defeat it by adding
the immigration bill to it and having it vetoed by the President."
CR 11797.
Hardwick and Reed had agreed that the Democratic caucus' action
was not binding if, in the words of Reed, it was contrary to "a
man's conscience or his pledges or his opinion that the measure is
violative of the Constitution." CR 11797.
1 CR 11804. Since Hardwick was in favor of the immigration bill,

he was also in another "very bad fix": if the two propositions
were tied together, "I do not know whether it would beat them both
or pass them both." -L o c . c l t .
^ New York Times. Aug. 1, 1916, p. 9. The vote was 32-7.
76 ’
F. On the floor of the Senate
The only question remaining was how much time would be al
lowed for Hardwick and other senators to have their say. The
Senate debate had begun even before the bill had been reported
from committee. In February, the Republican senator from Iowa,
William Kenyon, had spoken for over an hour with a thoroughness
that matched that of Beveridge in 1907; and eight senators had
taken part in a discussion of constitutionality,1 The debate
was r e s m e d on August 4. The opening speech was begun on the pre
ceding day by a young but experienced spokesman for the majority,
Joseph T. Robinson, who, as senator from Arkansas, was strikingly
qualified to refute the argument that the South was opposed to
the bill. Robinson was as cogent as Beveridge and Kenyon at their

g
best. After the conclusion of his speech, there began a debate
which spread over four days and was participated in by about forty
senators .3
1 Feb. 24, 1916. Kenyon had twice introduced the Beveridge bill.
Unlike Beveridge, who was blunt about the necessity nine years
earlier of enlightening his colleagues, Kenyon began by stating
how long his remarks would take “so that Senators can retire and
be back at that time.*' CR 3021.- His dissertation was designed
mainly for the Record. With bibliographical references and ex
tensive quotations — including Alexander Hamilton’s words of
approval for the English cotton industry, which included many
children “of tender age“ — Kenyon traced the history of child
labor from the Elizabethan poor laws to the present. He sunmar-
ized the usual arguments and inserted in the Record not only di
gests of all State child-labor laws but also the child-labor laws
of thirteen foreign countries. CR 3021-3057. See also above p./?-
2 CR 12052-12057; 12060-12093.
3 Constitutional features of the debate are discussed in Part III*.
Whether or not the Senate's substitute bill was more likely
than the House bill to be held constitutional by the Court was
not an important question during the debate Robinson did not
rely on constitutional arguments to justify the changes;2 nor
did the opposition lift any of its constitutional fire on the
House bill by concentrating it on the Senate version although the
observation was made that "in the Senate bill even subterfuge is
disregarded and cast a s i d e . S o m e of the bill's supporters, how
ever, expressed fear that the danger of unconstitutionality had
been increased. Both Pomerene and Clapp, who were members of the
committee in charge, wanted "to reduce to a minimum any danger
there may be."^ Yet both preferred the Senate bill to no bill at
all. Cummins, who was also a member of the committee, agreed that
the changes should not be accepted if they made the bill "more
vulnerable to an attack." But he thought there was greater pro
bability that the Senate version would be approved by the Court.
Since the evil was child labor and not its products, he said,
there was less "sham" in the Senate bill.^
On the following day, Cummins, with some hesitation as to
whether the fact might be revealed, stated that doubt had arisen
^ See above p.£>7in regard to the Senate Report.
2 Robinson did describe as an "unreasonable burden" the applica

tion of the House bill to all dealers rather than only to dealers
in the State of production. CR 12052-12054,
3 Hardwick, CR 12062.
^ Pomerene (D, Ohio), CR 12220. "It seems to me," said Clapp

(R, Minn.) of the bill, "the more closely we can relate it to com
merce the more likely it~is to be sustained." CR 12878.
5 (R, la.), CR 12220, 12278.
permission o f the copyright owner. Further reproduction prohibited without permission.

when the subcommittee had begun to consider the House bill.
Professor Parkinson had been sent for and had agreed that the
Senate changes were constitutional.^ Of the two bills, said
Cummins, ". . . one is just as constitutional as the other." Yet
he concluded later that he had "much more confidence" in the
Senate bill which was "free from some of the impracticable and,
as I think, arbitrary and unreasonable provisions of the House
measure.”^
1 CR 12278. Cummins added that Parkinson did not necessarily

prefer the Senate version.
g
Cummins found the House bill "unreasonable and therefore
unconstitutional" on three counts — for including all dealers
within its requirements, for containing no provision to protect
the manufacturer who had procured in good faith certificates as
to the age of child employees, and for allowing every shipment
to be a separate offense. In addition, there was "grave doubt"
about the House bill's rule of evidence for determining whether
products were child-made; whereas such a rule was unnecessary in
the Senate bill. CR 12278-12279.
There was no further discussion of the differences between

the two bills. Shortly before the final vote, however, Hitchcock
(D, Neb.) stated that he was glad that amendments to the House
bill "increase the chances of its constitutionality." CR 12295.
G. Final Passage
On August 8, 1916, the Senate bill was approved by a vote
of 52 to 1 2 A conference committee recommended without refer
ence to any constitutional problem that the House agree to the

g
Senate's amendments. When the conference report was presented
to the House, there was no discussion of what Representative Lewis
referred to as "the slightly different constitutional aspects."
Gn September 1, 1916 the bill was signed by President Wilson, and
there began the year of grace before the act was to take effect.
CR 12313* For an analysis of the vote, see below p.

In the Senate there was no parliamentary obstruction to final
passage of the bill. Amendments extending the coverage of the
bill were offered by two opponents, Thomas and Tillman, who said
they were interested in making the bill effective. In regard to
Thomas' amendment, see CR 12134, 12136-12138, 12215, 12312; for
Tillman's, see CR 12294, 12312.
A last minute effort, defeated by a vote of 42 to 14, was

made to have the act take effect two years after passage instead
of one year. CR 12306-12311
2 House Report N o . 1107, 64th Cong., 1st Sess., Aug. 15, 1916
3 CR 12845.
II. Popular Pressure and Congressional Response
A. Introduction
Among all the pressures and counter-pressures which hit the
member of Congress, there are, presumably, constitutional pres
sures— the restraining influence of the oath of office and the
prior restraint of the Supreme Court. What was their weight and
importance in the passage of the child-labor bill? An answer
must take into account the force of popular pressure since it is
this pressure which the restraints of constitutional morality are
intended to withstand. There are, then, some preliminary ques
tions to be asked. How heavy was the pressure of public opinion
for passage of the bill? With what intensity of opinion did Con
gress respond to that pressure?
B. How heavy was popular pressure for the bill?
If "individual views are always to some extent weighed as
well as counted," as President A. Lawrence Lowell of Harvard said
in 1913, the intensity of support for the bill and the fact of
legislative success should amount to an "effective majority."^
As to Lowell's mere "numerical majority," there is little evid
ence that in 1916 any substantial portion of it was opposed to
national regulation. Ten years later, Professor Howard Lee
McBain was to cite the unfortunate history of the proposed child-
labor amendment as suggestive of the fact that in 1916 "public
opinion, whether wisely or unwisely, was strongly opposed to a
^ See Lowell's Public Opinion and Popular Government, 12-14.
federal child labor law" and that the Court, "however unwittingly,"
had been closer to public opinion than Congress and the President.1
This judgment is unconvincing, however, in view of the generally
conservative reaction of the twenties, the special opposition that
was provoked by the proposal of an amendment rather than a law,
and the fact that state legislatures were sometimes less repre
sentative than state delegations in the national House.
Evidence of popular sentiment for national action in 1916
can be found in the many publications of the National Child Labor
Committee, in The Child Labor Bulletin, and elsewhere. Although
sentiment for a general regulation of hours probably cannot be
inferred, there seems to be little question of the pervasiveness
of sentiment for a child-labor law, which had a special and hu
manitarian appeal* On January 25, 1914, the annual "Child Labor
Day" was observed in about 14,000 churches, Sunday schools, reli
gious societies, and public and private schools, according to an
estimate of the National Child Labor Committee.^ Two years later,
an even wider observance led the Committee to claim that this had
"undoubtedly" influenced "prompt passage" of the Keating bill in
the House a few days lat e r •
The existence of widespread public support is reflected in
the vote for passage of the bill, in the testimony of its Con
gressional supporters, and even more clearly i n the admissions
of their opponents. The vote — 7 to 1 in the House and 4 to 1
1 H. L. McBain, The Living Constitution. 1927, 160-161.
® "Tenth Annual Report of the General Secretary," The Child Labor

Bulletin. Vol. 3, Nov. 1914, p. 5.
3 Ibid., Vol. 4, Feb. 1916, p. 169.
9JL
in the Senate — reveals an extraordinary non-partisan and non
sectional support.-*- Only two Republicans in the House and only

g
four Republicans in the Senate were opposed to the bill. (This
and the following observations refer not only to members who voted
but also to those who were paired for or against the bill or whose
position was announced.) Of 227 Democrats in the House, only 48
were opposed; and in the Senate, only 11. With one exception, all
Democratic opponents came from nine States. And though these
States were all in the South, it cannot be said that the South
was in opposition. Only North Carolina (including its one Repub
lican representative) and South Carolina had Congressional dele
gations which were unanimously opposed to the bill; and Florida,
Georgia, and Mississippi had delegations in which a majority was
opposed. From Arkansas, Louisiana, and Oklahoma, on the other
hand, there was no opposition. The sixteen States of the Solid
South were split but in favor of the bill — 84 to 49 in the House
and 16 to 10 in the Senate — with no more than one-third of all
Southerners (including those unannounced) expressing opposition.3
During the debates, the supporters of the bill frequently
eited the endorsements of some eighty newspapers, mainly in the
•*• The House vote is reported in CR 2035-2036; the Senate vote

in CR 12313.
^ In the House; Britt (N.C.) and Parker (N.J.). In the Senate,

Penrose (Pa.) and Oliver (Pa.) voted Nay. Brandegee (Conn.) and
Dillingham (Vt.) announced that they would vote Nay were they not
paired.
Parker had been a member of the House Judiciary Committee of

1907. Two other members of the old Judiciary Committee were still
in the House; Henry (D, Tex.) and Sterling (R, 111.). Neither one
expressed himself during the debate; both voted for the bill.
3 Among the Southerners, the number of absentees whose position
South, of labor and farm organizations, women's clubs, professional
and business men, and as evidence that the bill's standards were
already widely accepted often referred to State legislation.^ Not
only had both major parties finally given an unequivocal endorse
ment to a national child-labor law in the summer of 1916; spokes
men for each side laid claim to partisan credit for passage of the
bill. Representative Keating, for example, gave "the lion's share"
to President Wilson; the Republican floor leaders in the House and
in the Senate pointed to greater unity and insistence on the Re-
p
publican side. But as Senator Robinson said, in opening the
Senate debate, "The fact is, general public sentiment throughout
the United States is in favor of the law and this accounts for
the repeated efforts to inject politics into its consideration."3
was unannounced was not significant — 13 in the House and 6

(including Senator Owen) in the Senate.
-1- The House Committee, in regard to the most controversial of

the bill's standards, adopted an interesting but dubious kind of
argument from the National Child Labor Committee: States with an
eight hour law for children under sixteen employed in factories
had a population of 52,551,796 while States without such a law
had a population of 39,420,470. House Report. 8-9.
2 For Keating, see CR Appendix 1805. The speech by which Wilson
was notified of his renomination gave him credit for rescuing the
children. In his reply, using the first person plural, Wilson
agreed that the children had been emancipated. CR 13656-13657.
For Representative Mann, see CR 1593-1594. Senator Gallinger
spoke in reply to the remark of Hitchcock (D, Neb.) that the act
would be a climax to the administration's record. CR 12295, 12297,
12301. See also the remarks of Representatives Copley (Prog.-R,
HI.), Denison (R, 111.), Cline (D, Ind.), and Cooper (R, Ohio):
CR 1574, 2020, Appendix 1664-1665 and 1723.
3 CR 12055, On the day preceding passage, Senator Kenyon re
joiced in the imminent passage of "a bill in principle, at least,
demanded by both of the great political parties and by the great
consensus of opinion in this country." Nevertheless, Kenyon as-
The opponents of the bill had little to say about their own
f o l l o w i n g T h e y had much to say, however, about the forces

favoring the bill -- "agitators," “sensation mongers,“ “idle-rich,
sentimental good-hearted women," with "one of the strongest and

~ 2
most successful lobbies ever maintained in Washington" The bill's
most emphatic opponent, Senator Hardwick of Georgia, spoke of “en
ormous political power" behind the bill and credited four sources:
"sentimentalists," union labor, interstate business competition,
and "coquetting . • . with the Bull Moose vote," There was rec
ognition, furthermore, that the power behind the bill was not
momentary. Similar bills had been in Congress for ten years, said
the manager of the opposition in the House. "It cannot be ques
tioned that in recent years a widespread and, in some localities,
signed "the most credit" to Beveridge for having stood alone in

the Senate about ten years before. CR 12213.
Neither major party received credit from one representative —

the lone Socialist in Congress, Meyer London of New York. "Whether
you Republicans or Democrats want it or not," he said, "you-must
march along the broad road of social legislation. We, the social
ists, hold a whip over you." CR 1591.
1 Three representatives from the Carolinas stated that they

were speaking for the adult cotton-mill employees and claimed that
the employees had petitioned against the bill. Byrnes and Nicholls
(S.C.) and Webb (N.C.), CR 1578, 1581, 1571. Similar testimony had
been heard by the House Committee, which had dismissed it as self-
interested and had concluded that the petitions were too much the
product of misrepresentation and coercion to be relied on. House
Report. 7-8.
Little reference was made to the opposition of certain southern

manufacturers or to that of the N. A. M. A resolution of the
Georgia Manufacturers' Association was submitted by Senator E. D.
Smith of Georgia without comment. CR 2680.
g
See the remarks of Webb, Page, and Doughton of North Carolina
in the House and Hardwick of Georgia in the Senate. CR 1570, 1580,
2013, 2021, 12064.
3 CR 12063-12066
an almost overwhelming public sentiment has grown up in favor of
legislation of this c h a r a c t e r T h u s , the opposition did not
deny that public opinion favored the bill, nor did they doubt the
passage of the bill.^ They were inclined, rather, to inveigh
against becoming, in the words of Senator Tillman, "panderers of
public opinion."3
1 Watson (D, Va.), CR 1586
See the remarks of Watson and Senators Hardwick, Brandegee,

and Fletcher (D, Fla.), CR 1586, 12075, 12223, 12201.
^ CR 12295. Congress was unfair to the Supreme Court, said

Brandegee, when it passed bills in response to"public clamor."
CR 12093.
C. How Intense was Congressional support for the bill?
Was Congressional support for the bill as intensive as the
vote for it might indicate? "... the passage of this bill,"
said Copley of Illinois, the sponsor of the Progressive Party's
child-labor bill in the preceding Congress, "will mark the
greatest stride toward real democracy that this country has
ever taken since the first landing in Jamestown,"-1- Few members
were as extreme as Copley although most of the proponents who
spoke on the merits, especially in the House, were generally
enthusiastic about getting the bill through. Nevertheless,
the extraordinary Congressional majorities are accounted for
not by a common passion but by a steadily rising political
pressure and by the innocuousness of the bill itself.
Nearly all of the conservatives in Congress supported the
bill. There was, however, no organized business support for a
national law, contrary to the opposition's intimation. Occasion
ally from the fact of interstate business competition the infer
ence was drawn that New England cotton-mill interests were pro
moting the agitation.2 "Why all this demand for a uniform law,"
1 CR 1575.
2 The fact was that interstate business competition in supplying

an argument against the passage of state child-labor bills — the
argument that local business would be at a competitive disadvantage
had impelled the "humanitarians" and not the businessmen to agitate
for national legislation.
However, the advantageous position of the Southern mills may

account in part for the lack of opposition from seme northern
conservatives, for example Lippitt of Rhode Island. Lippitt was
unsympathetic to a last-minute request for an additional year in
which an adjustment could be made. There would be no more trouble
in the South than there had been in New England, he said. "It will
put them to a little expense." CR 1£308.
asked Representative Webb of North Carolina, " . . . unless . . .
to foist upon the mills of the South the same labor laws and
troubles that they experience in New England and thereby lessen
competition with them."-L
If those interests were behind the agitation, they were
supported neither by the National Association of Manufacturers
nor by a former president of the New England Cotton Manufacturers
Association, Senator Henry Lippitt of Rhode Island. Lippitt
emphatically denied the insinuations. A powerful lobby had been
formed, he said, by "the idealists and the humanitarians of the
country"; not a single manufacturer but many women, clergymen,
and lawyers had urged him to vote for the bill.^ Earlier, on the
last and unscheduled day of hearings, he had complained to an
official of the National Congress of Mothers that her appearance
in opposition to the bill was belated. He had received "a stack
of petitions a foot high" for the bill, he said, but none against
it. "... you will realize the position, perhaps, of the Senate,
3
when representations come to them all on one side." Lippitt
realized the position and. voted for the bill.
Other business and also rural representatives in Congress
supported the bill but were apathetic about its purposes# The
chairman of the Senate committee in charge of the bill, Newlands
of Nevada, was himself sympathetic to the "humanitarian" expendi
1 CR 1571. "I have heard nothing about this commercial rivalry,

said Boies Penrose of Pennsylvania, who voted against the bill#
CR 12309.
2 CR 12308-12309. Weeks (R, Mass.) testified that he had had

the same experience# L o c . c i t . See also Senate Hearings. 23.
3 Senate Hearings. 298-299.
tures of the southern mill owners and the desirability of allowing
needy twelve and thirteen year old children to work.1 In the
House, one Yea came from a member who had proposed an amendment
to weaken the bill;2 another, from Joseph Moore of Pennsylvania,
a Republican and high protectionist who twice proposed amendments
which dononstrated more concern for the exclusion of the products
of foreign child labor than for the protection of domestic children.
The Democrats, he said, 11apparently . . . are only endeavoring to
put a thumbscrew on some of the Southern States." Even Joe Cannon
of Illinois voted for the bill. However, the "loud applause" for
his incoherent remarks was presumably not an endorsement of his
indecision ("I don't know, I am just wondering, but I expect I
ma y vote for this bill") but a tribute to the unique personality
of "Uncle Joe."4
How much akin these apathetic proponents were to the rank
and file members who did not express themselves, it is difficult
to say* An even larger number of Yeas probably came from members
who were apprehensive about the bill's national character. Cer
tainly the opposition directed much of its argument against such
an apprehension. Passage of the bill, it was said, would unlock
1 Ibid., 68-69, 75, 297-298, 303-305. Newlands failed to vote

or to have his position announced. See also the remarks of Sher
m a n (R, 111.), Borah (R, Idaho), and the solicitousness of Clapp
(R, Minn.), CR 12137, 12082, 12287-12288.
2 Wood (R, Ind.), CR 1599
3 CR 1597 and see CR 1594. When Webb proposed striking out the
words "situated in the United States", in regard to mills and other
workshops, Moore came to his assistance; and those present divided
57 to 69 against the amendment. On the final House vote only 46
voted in opposition and 337 made their appearance to vote in favor.
CR 1603.
4 CR £023.
9?
a "Pandora's box" of evils; that is, there would be further na
tional intervention in business.’1' Since ninety per cent of all
commodities entered interstate commerce, according to Emery of
the N. A. M . , "He who controls the conditions under which inter
state commerce is to be carried on is the regulator of national

C
business." The bill in proposing such control, he said, opened
the door to countless demands for further regulation.3 This
warning was, in effect, the major argument of the opposition. It
was heard repeatedly on the floor of Congress and was illustrated
frequently by references to the possibility of an eight-hour day
for all workers including those on the farms and, less frequently,
by the possibility of union membership or minimum wage standards.^
In the House, Vi/ebb and Byrnes alone introduced fourteen
amendments embodying these standards and other standards which
would have affected northern business especially (and, incident
ally, suggested invidious comparisons with the South) — for ex
ample, amendments banning goods produced "by persons who live and
sleep in any room in which more than three persons live and sleep"
or by labor if sixty per cent were foreign born, or by girls under
The analogy was used by Senators Brandegee (R, Conn.) and E. D.

Smith (D, S.C.), CR 12225, 12288.
g
House Hearings, 161. Brandegee's argument that no State govern
ments would be needed if Congress could pass such bills was based
upon a recognition that commerce was "inextricably intermingled be
tween the States." CR 12087.
3 House Hearings. 172. RLtchln predicted that if the bill were

approved by the Court, an eight-hour bill patterned after the child-
labor bill would be "vigorously pressed" upon Congress within five
years. Senate Hearings. 96. See also House Hearings. 152.
4 The possibilities of future legislation were often suggested by

hypothetical questions about Congressional power. See CR 1587-1588,
3053, 12064, 12082, 12089-12090, 12197-12198, 12215, 18317.
L
eighteen who operated sewing machines.1 These amendments, Webb
explained later, were 11of course • • . clearly unconstitutional . .
but I wanted to show the House what in m y opinion would some day
rise up to plague the House.
Some of these fears had confronted Beveridge in 1907, but
in 1916 they could not seriously affect the vote for a highly
popular bill to which the leadership of both major parties was
committed. The fears were still present, however. When a stray
but influential Republican like Brandegee, who opposed the bill,
said of its ‘'principle” , . . i f sustained by the court . . .
really I tremble for the consequences,”3 there were undoubtedly
sympathetic vibrations among many of his colleagues. And undoubt
edly more than fourteen senators agreed when he declared that "the
4
court has to call a halt.”
Among them was probably Gallinger, the Republican floor
leader in the Senate. On February 24, before the bill had been
reported out of committee, Gallinger referred to a letter from
"a very prominent citizen" of his State who had raised some ques
tions about "the next step” and asked that he vote against the
bill. The citizen had pointed out that probably a twelve-hour or
1 CR 1603-1604
^ CR 1604. Some of the special fears of the opposition were

also laid bare. Congress might prohibit interstate commerce if
there were deprivation of a man's suffrage, said Senator Overman
of North Carolina, or, said Byrnes, if there were segregation or
racial discrimination. CR 12088, 1588.
3 CR 12285.
4 CR 12091.
a ten-hour standard for men might be established, Gallinger went
on to say,
They very seriously argue in certain quarters that

m e n ought not to work more than eight hours. Indeed
I observed that a gentleman haranguing an audience in
Boston Commons said a little while ago that no human
being ought to work more than six hours a day,1
Six months later in the Senate, Gallinger said nothing about
"next steps," Robinson and Kenyon, however, the two bi-partisan
spokesmen for the bill, agreed that Congress was at a constitu
tional frontier — "there are no exact precedents" — and that,
the Supreme Court be willing, the frontier was to continue moving
forward,^ Some o f the suggestions as to future action — a ban
on goods if the workers had consumed liquor or if they were op
posed to w o m e n ’s suffrage — Kenyon found "so utterly silly that

3
they must be attributed to the effect of the weather. As for
the possibility of indirect national action on behalf of the Negro,
Senator Vardaman of Mississippi, who voted for the bill, found
that to be a "bugaboo,"4 Yet, clearly, there were serious pros
pects of agitation in the future which could not easily be brushed
aside.
On the day before passage of the bill, those prospects were
candidly stated by Kenyon. "This kind of legislation is going
on if the Supreme Court sustains this act," he said; and he pro
ceeded to give notice of "the next step" to the Senate (and to
1 CR 3054.
^ The words quoted are Robinson's, CR 12056, In the House,

Representative Denison (R, 111.) ha d said of the bill, "If it
is sustained there are many laws whLch Congress could pass under
the interstate commerce clause • • • . And while I would not be
willing to amend the Constitution for this purpose, I would like
to see the power of Congress under the interstate commerce clause
extended just as far as it reasonably can be." CR 2020.
3 CR 12214. 4 CR 12222.
permission o f the copyright owner. Further reproduction prohibited without permission

rju
the Court) — “an act to prohibit the transportation in interstate
commerce of goods made in factories where women work more than
eight hours per day."'*' As to Hardwick's question about "the next
step after that," Kenyon remarked, "... the time will probably
come in this country when there will be a general consensus of

p
opinion that eight hours a day is all that a man should work."
Thus, there appeared to be not only much enthusiasm for the
bill but also unconcern about the precedent it would set. How
ever, there was also some apathy among those who voted Yea and
probably much apprehension. Six months after the child-labor
bill became law, Senator Robinson and Representative Keating in
troduced a bill patterned after the child-labor act and prescrib-
ing an eight-hour day and six-day week for women. That bill was
re-introduced on the first day of the sixty-fifth Congress;^ and
in December 1917 the pattern was followed by a member of the
House who introduced an eight-hour bill affecting men as well as

5
women. Six months later, the child-labor law was declared un-
g
constitutional by the Supreme Court. For those who had been
apathetic about the bill's passage, the Court's decision coifLd
hardly have been unpopular. For those who had been apprehensive,
as well as for the opponents, the decision could hardly have been
unwelcome.
•*- CR 12215. "I hope and I know," said Brandegee, "that . . .

the Supreme Court . . . will know that they are at the parting of
the ways." CR 12226.
^ CR 12215. For Kitchin's prediction, see above p.
3 S. 8274 and H.R. 20947, Feb. 17, 1917, CR 64th Cong., 2nd Sess.,
3480, 3545.
4 H.R. 123, by Keating, April 2, 1917, CR 65th Cong.,1st Sess.,124.
® H. R. 6520, Mto prevent interstate commerce in commodities
produced by labor employed more than eight hours a day without
added compensation," by Kelly (R, Pa.), Dec. 3, 1917, CR 65th
Cong., 1st Sess., 7.
6 See below p . /S3,
III. Constitutional Pressure and Congressional Response
A. Introduction
How did the problem of constitutionality affect the members
of Congress? Did constitutionality deter members from voting for
the bill? How was the problem met by those who were not deterred?
How were constitutional Judgments defended and with what assump
tions about the finality of Congressional and judicial interpreta
tions? These questions are of interest with regard to the opposi
tion, also, although presumably the opponents of national action
could not be accused of constitutional immorality. The questions
are especially relevant, however, with regard to the more enthusi
astic supporters of the bill. Unlike the apathetic or apprehensive
proponents, they might not be expected to appreciate a future un
favorable decision by the Court. But to anticipate their acceptance
or rejection of the Court's decision, it is necessary to examine
constitutional assumptions in addition to attitudes toward the
merits of the bill.
B. Constitutionality and the final roll call
Did constitutionality decisively affect the division of Con
gress when the final roll was called? Would the vote have been
different if constitutional questions had not been present?-*- One
^ There is a related question: would the vote have been different

if there had not existed a Court with the power of judicial review
of constitutionality? In that situation, possibly some who voted
Yea might have voted Nay. See below pp. !3 s-i3 y_
would hardly expect fewer affirmative votes; there is no indication
that anyone voted for the bill solely because he thought it consti
tutional Could one expect fewer opposition votes? Were there
any members, that is, who voted against the bill solely on constitu
tional grounds and who presumably would have voted for it if, for
example, the Constitution had expressly authorized a national child-
labor law?
Only a few opponents maintained that constitutionality was
their sole objection# But they as well as every other opponent
who expressed himself either in committee or on the floor had some
ground of opposition to the policy of the bill. Those grounds may
be arranged on a scale reading frcm the provisions of the bill it-
self to dimly perceived consequences# Thus the opposition ranged
from the Florida representative who expressed blanket opposition
and found the talk for the bill "slckeningly sentimental"® to
Senator Works, a California Republican, who supported the bill's
standards but feared that Congress was "driving irresistibly . . •
to a centralized government" and "eventually a despotism#"^ Some
where in between was Senator Thomas, a Colorado Democrat, who ar
gued that even fifteen hours of work a day was not injurious if
done on a farm and who feared that the States would become "pro
vinces" in "a quarter of a century."®
With only three or four doubtful exceptions, all the opposi
tion speakers were opposed either explicitly or in spirit to the
1 One senator voted for the bill solely, he said, because he

thought it unconstitutional and wanted to enable the Supreme Court
to pass upon the question. See below p. /Js:
2
The intensity of opposition did not necessarily decrease as
the grounds of opposition became more distant#
3 Clark, CR 2037. 4 gR 1 8 2 1 3 .
5 CR 12132, 12136-12138.
standards of the bill,'1' James Byrnes, for example, was opposed
to passage of the eight-hour provision even by his own state
legislature,2 Webb opposed the lack of an exception that would
allow “a big, strapping, 12-year-old" to work for a destitute
mother. There was opposition, also to provisions for enforce-

4
ment — an "army of inquisitors, always spying and prying,"
These criticisms were looked upon sympathetically b y the Republican
senator from Connecticut, Frank Brandegee, who declared that the
bill's unconstitutionality was the reason for his opposition. He
feared that many able-bodied boys would become "tramps", that
severe penalties would lead to harassment, and that the bill "might
utterly tear apart and rend the business interests of this country."3
Were these policy arguments sufficient to account for the
opposition's vote? That there would be opposition to the bill
regardless of constitutionality was a point not prominently made
1 Senator Husting (D, Wis.) made a contrary observation: he

believed, he said, that the Supreme Court would consider the bill
to be solely an expression of Congressional policy "and, as appears
from the debate here, they will not fail to see that, if it were
only a question of policy, then this Chamber would have been prac
tically unanimous in favor of this law," CR 12212. Senator Works
(R, Cal.) agreed. L o c . cit.
Some members whose remarks were brief attacked only the spirit
of the bill. For example, Blackmon (D, Ala.) deplored "demagogic
. . . appeals about the 'poor children1", CR 2034; and Ragsdale
(D, S.C.) himself made a demagogic appeal: ". . . g o through all
the world and take all the languages • • • and pick out the one
word that stands higher than any other in the estimation of American
manhood, it is the name of mother." CR 2013.
2 CD, S.C.), CR 1578. 3 (D, S.C.), CR 2031.
4 Webb, CR 1571. 5 CR 12223-12227.
permission of the copyright owner. Further reproduction prohibited without permission.

on the floor of either house* Constitutionality was, for most
opposition speakers, "the m ain objection", the "fundamental" or
the "first" objection*-*- However, the vote would have been the
same if the House Committee's minority report m ay be taken as a
guide. That report was filled mainly with constitutional argu
ments but stated bluntly in conclusion that even if the bill was
P
conceded to be constitutional, it should not pass*
Opposition to the provisions of the bill does not fully ex
plain the position of those who claimed that constitutionality
was their sole objection. The Republican senators from Connecticut
and California, Brandegee and Works, and the Democratic senators
from South Carolina and Colorado, Tillman and Thomas, fall in this
3
category. Except for Brandegee, they did not attack provisions
of the bill nor did they seem, with perhaps the additional excep
tion of Thomas, unsympathetic to regulation of child labor* Never
theless, their fear of future legislation and their opposition to
national instead of state action seem to have been sufficient
grounds for opposition. The "Pandora's box" argument has already
been noted.4 The argument against national action, that the States
were the best judges and the most efficient administrators of legis
-*- Rep. Nicholls (D, S.C.), CR 1582; Sen. Hardwick (D, Ga.), CR
12064; Rep. Black (D, Tex.), CR Appendix 1285* The questions of
constitutionality and of policy were described by Webb (D, N.C.),
on one occasion, as "equally serious"; later, constitutionality
became "the most serious matter involved" and "my chief objection."
CR 1569, 1571, 2030.
2 See above p. 66 and CR 1590.
3 CR 12092 and 12227; 12061 and 12212-12213; 12294-12295; 12093ff
4 See above pp.
lation, was expressed by over a dozen opponents in both chambers
Among them was “Pitchfork Ben" Tillman, the old agrarian radical
from South Carolina, who did not talk of “virtue • • • from honest
2
toil” or “evil • . • inherent in our nature." Instead, he at
tacked “the greed and inhumanity of capital" and declared that “the
quibbling and selfishness of cotton-mill owners makes me almost

3
willing to vote for the Keating bill." But he was voting against
the bill, he said, in order to oppose the grant to Washington of
control like that of Berlin over Germany.^
Opposition to "centralized government" reflected more than
an attitude toward the problem of administrative efficiency. Such
a government meant “despotism", and the bill was described as un-
American,^ socialistic, and revolutionary.6 Did this constitute
opposition to the policy of the bill or to an unconstitutional ex
ercise of power? “Desirability" and "constitutionality", Professor
The argument was often expressed negatively: the national

government was disparaged rather than the state governments extolled.
For example, see CR 1569-1570, 1578, 1584, 1590, 1605-1606, £031,
18801, 12812-18213, 1£££6, 1££87-1££89, 1££99.
2 The words are Webb's (D, N.C.), CR 1571, and Watson's (D, Va.),
CR 1586.
3 CR 13894. 4 Loc. cit.
5 The doctrine of the bill, said Senator Hardwick, was " . . . not
Democratic doctrine. Shades of Jefferson, of Madison, of-Jackson,
and of Cleveland, no! It is not Republican doctrine. Why, the
last Republican President of the United States denounced it in as
strong words as Jefferson employed about this sort of business!"
CR 12065. Representative Britt, the lone Republican in the North
Carolina delegation, agreed: "Republican as I am, Hamiltonian as I
am, I cannot approve it. It would make Alexander Hamilton turn over
in his grave." CR 2012.
® For example, see CR 1580, 1586, 2012, 2017, and the remarks of
Brandegee, CR 18086-12088.
Parkinson had said during the hearings, are “two distinct questions. "-1-
But much of the oppositions argument was a defense of what was
conceived to be major constitutional policy. Shortly before Parkin
son spoke, James Emery had insisted that constitutionality was the
sole question before Congress: was the bill "a rightful exercise
of the power of Congress?” Emery's answer was No; he opposed a
change in the "existing policy for a new policy, which is revolu
tionary in character*"3 Similarly, on the floor of the Senate,
Boies Penrose of Pennsylvania attacked the bill as "a radical de
parture in the policy of the American government."^
Often during the debates there was this confusion or blending
of policy and constitutional arguments. What could be identified
as opposition on the merits was generally incidental. Without the
constitutional argument, therefore, the opposition's case would
have been deprived of much substance as well as respectability.
Whether this loss would have meant fewer Nays, it is difficult to
say. (Certainly far fewer pages would have been necessary to re
port the hearings and debates.) It still seems probable, however,
that there would have been no fewer Nays even in the absence of
constitutional issues since every member of the opposition who
spoke was opposed to the bill on some level of policy and with some
degree of vehemence.
^ Parkinson gave no examples when he added, " . . . much of the

discussion had before the committee with respect to its constitu
tionality had been directed more pertinently to its desirability."
House Hearings. 177.
2 Ibid., 163. 3 Ibid.. 172. Senate Hearings,

280-281.
4 CR 12203.
/CO
C. The Problem of Constitutionality,
1. How serious was it?

How serious, in their own estimation, was the constitutional
problem for the members of Congress? Of those who Voted against
the bill only six of twenty-two who spoke in the House and only
one of eleven in the Senate failed to use constitutionallanguage.
Of those who did use such language, it was commonly asserted that
constitutionality was their primary or only objection. Among
proponents of the bill in the House, however, a majority considered
it a secondary problem or no problem at all and gave practically
no sign that they considered themselves to be standing on a con
stitutional frontier. Rather, the prevailing attitude, in the
words of Keating, was that on the matter of constitutionality
they were standing at "our opponent's last line of trenches.""*’
Representative Lenroot of Wisconsin stood almost alone when he
Q
referred to constitutionality as a "debatable question."
In the Senate, however, a majority of the twenty-eight members
who spoke for the bill found constitutionality the main or the sole
problem, Kenyon used words similar to Lenroot's in introducing
the constitutional question, but he looked rather ruefully upon
the spate of discussion which followed. Before yielding to one
of his supporters, Borah of Idaho, Kenyon said with characteristic
frankness, "I know if we get this constitutional question going we
Appendix 242. ® CR 1584.

3 Feb. 24, 1916. CR 3044.
M
will never get through.”'*' Nevertheless, in opening the five-day
debate which preceded passage of the bill, Senator Robinson did
not minimize the "very vital question” of constitutionality.2 No
one who spoke for the bill clearly denied that the Senate was mov
ing in a constitutional "twilight zone,"® There were a few signs
of impatience with the debate when, in the opinion of one Republi
can senator, it was rapidly becoming tedious. Even he, however,
conceded that "possibly there is a chance for a legitimate dis-
4
cussion of the question."
2. Was the bill constitutional?

Did those who voted Yea express the belief that the bill
was constitutional? Did those voting Nay maintain that it was
unconstitutional? Did each group express an expectation that the
Court would be on its side? Affirmative answers to these ques
tions are perhaps obvious. It is true that, with one exception
to be discussed below, no one voting for the bill in the House or
Senate said that he thought the bill was unconstitutional; of
those voting against it, no one conceded that it was constitu
tional. However, in answer to the question of constitutionality —
setting aside, for a moment, the question of how the Court would
act — there were differences of emphasis. Again with reference
only to members who expressed themselves at some time, supporters
of the bill in the Senate spoke, on the whole, with more qualifi-
1 CR 3048. For Borah, the bill was "on the border line of the
power of Congress." CR 12086.
2 CR 12055. 3 CR 12219, Pomerene (D, Ohio).
4 CR 12284, Townsend (R, Mich.).
/Cji
cation about constitutionality than did supporters in the House.^
There, Keating was typical when he said that the bill was "clearly"
constitutional; whereas, among the leaders for the bill in the
Senate, Robinson found it "fairly within" the precedents, Pomerene

had "some doubt" about constitutionality, Borah had "a reasonable
- *■ " g
doubt", and Kenyon had "grave" though "not serious" doubt.

On the other hand, the bill*s opponents appeared uniformly
more certain about constitutionality. The chairman of the House
Judiciary Committee, Webb of North Carolina, overstated the general
opposition view only slightly, if at all, when he said:
I do not think there has ever been a bill presented

to this body that more clearly, directly, and boldly
undertakes to violate the Constitution of the United
States . . . than this particular measure.4
Byrnes and Tillman of South Carolina and Thomas, born in Georgia
and Democratic Senator from Colorado, were "convinced" the bill
5 ~
was unconstitutional. Senator Fletcher of Florida had "no doubt",
and Senator Hardwick was "absolutely" certain. Not even the
request of every man, woman, and child in the State of North
However, two representatives and one senator — Ayres (D, Kans.),

Platt (R, N.Y.) and Gallinger of New Hampshire, a physician and the
Republican floor leader — were not so presumptuous, they said, as
to have any opinion on the matter. CR Appendix 246 and 265* 12301.
Senator Lane (D, Ore.) and Representative Barnhart (D, Ind.) did not
seem to care. See below, pp. f o ?>//<?-• //& .
2 CR Appendix 221. The emphasis varied: for example, Barkley

(D, Ky.) had "no doubt" and Towner (R, la.) found no convincing
showing that the bill was unconstitutional. CR 2003, 2009.
3 CR 12061, 12219, 12090, 12214. Pomerene (D, Chio) had "graver

doubt" about the Senate's version of the bill. See above, p. 7 7 .
4 CR 1594. 5 CR 1576, 12131-12132, 12294.
6 CR 12201, 12066.
iJ
/o3
Carolina, said Senator Overman, would be enough to make him vio
late his solemn oath by voting for the bill.-*-
3. What would the Court say?
Did conclusions as to constitutionality amount to predictions

of how the Court would act? The large majority of members who
spoke of constitutionality, nearly all of those whose remarks
were brief, did not refer to the Court explicitly. Perhaps,
thereby, they implied that constitutionality and the Court were
equivalent. Many of the leading speakers, however, were explicit
about what the Court might do; and among them the correlation be
tween Court and constitution was not perfect.
Some of the proponents betrayed traces of apprehension. For
g
Kenyon, who was frequently "candid with himself", prediction was
a kind of guessing game, depending on how many judges like Senator
Sutherland or Senator Overman were on the Court. In the present
instance he was "not without some serious doubt" but he did guess
that the act would stand.^ For the most part, however, the pro
ponents of the bill proclaimed that they were, in the words of

Representative Keating, "not in the least apprehensive." As debate
1 CR 12194.
^ Kenyon used the words in regard to candid lawyers generally.
CR 3052.
3 CR 3054.
4 CR 12215, 3056. For the word "guess", see CR 12218. Repre
sentative Denison (R, 111.) found '-'good reason for the hope, if
not for the belief" that the act would be upheld. CR 2019-2020.
Some of Kenyon's colleagues were either more certain or less can
did. Clapp of Minnesota had "no doubt at all" that the Court
would act favorably. CR 12299.
neared an end, one senator expressed this confidence in summary
fashion:
I rejoice that the discussion here has developed the
fact that the very hest lawyers in public life, the
best lawyers in Congress, have given their opinions
that this act of Congress will be held constitutional
by the Supreme Court.1
The strategic value of expressing confidence may, of course,
have concealed a real apprehension* It is significant, therefore,
that in the minority camp there was both wavering and dissension*
Only Senator Hardwick made an unqualified prediction that the
Court would hold the act void*8 Representative Webb staked his
reputation '’almost."3 Senator Brandegee wavered:

Of course no man is wise enough to say • • • •
I do not believe the Supreme Court will say it is
constitutional.
It may be that this is a progressive age, it may be
that our Supreme Court • • • will sustain that, but
in my opinion the court has to call a halt.
. . . I think the Supreme Court would have said so
within a year or two ago. I do not know what the
Supreme Court will say about this bill now . . . .
. . . if sustained by the Court . . . really I tremble
for the consequences A
From others, there were implications that the Court would uphold
the bill. A similar bill, said Overman, "was treated as a joke"

in the fifty-ninth Congress, but in ten years there has come "a
Hitchcock (D, Neb.), CR 12895. See also the remarks of

Representatives Gardner (R, Mass.) and Smith (R, Mich.) and
Senators Robinson (D, Ark.), Husting (D, Wis.), Pomerene (D, Ohio),
and Townsend (R, Mich.), CR 1584, 2010, 12062, 12212, 12219, 12284.
2 CR 12063. See also CR 12076, 12307.
3 CR 1594. 4 CR 12088, 12091, 12092, 12224.
great change of sentiment."^- Overman did not conclude that there
was little hope of Court support. This conclusion was drawn by-
two of his colleagues, however, both of whom were "convinced" that
the bill was unconstitutional. "I must concede," said Thomas of
Colorado, who was fond of quoting Mr. Dooley's dictum that the
Court follows the election returns, "that in all probability, the
2
legislation will be sustained." Early in the final debate, Hard
wick had stated unqualifiedly that the Court would declare the act
void. Four days later, with the Senate's vote about to be taken,
Tillman completed the spectrum of prediction. "If Congress passes
the bill," he said, "I have no doubt that the Supreme Court will
declare it constitutional."3
4. Attitudes toward constitutional argument
During the House debate, the typical argument of the consti
tutional lawyer was heard. However, the average speaker in favor

of the bill was more likely to make some general assertion about
constitutionality or to charge hypocrisy. The lone Socialist in
the House, Meyer London of New York, was not alone in saying,
"When gentlemen lack argument they run to the Constitution for
protection. They go to the grave and seek for reasons in the grave
yard.^ Of sixty-six supporters of the bill who expressed themselves
in the House, thirty-seven commented on constitutionality; and of
1 CR 12196. See also the remarks of Rep. Nicholls (D, S.C.) and
Sen.“Bryan (D, Fla.), CR 1583, 1EE03.
s CR 12131, 12133. After the invalidation of the child-labor act

and during the debate on the child-labor tax, Thomas again quoted
Mr. Dooley. CR 65th Cong., 3rd Sess., 617.
3 CR 12295. 4 CR 1591.
these, at least seventeen dismissed the constitutional argument
as "byplay", a "mask", "technicality", "the old excuse", or "the
last refuge."1 Keating himself in speaking of the "last line of
trenches" added that "his satanic majesty is a keen student of the
Good Booke" However, the implication that constitutional debate
was futile was not followed. After attacking the "sophistries"
of "clever and not always scrupulous lawyers £whoJ do not
hesitate to transform the palladium of the peopled liberties
• • • into a bulwark for the protection of greed and injustice,"
he announced that an extended constitutional argument would be

2
made by "distinguished lawyers."
Impatience with constitutional debate was occasionally
directed against "lawyers", although the ambivalence in KeatingTs
remarks was usually present. There is a striking picture of the
opposition forces in the words of one O ’Shaunessy, a Democrat
from Rhode Island, who had found emerging "a struggle between
humanitarians and lawyers . . . . That impression was somewhat
enforced," he said, "by looking at the table where the minority

3
of the committee were entrenched behind a small law library."
The reminder of the succeeding speaker that "the lawyers are

4
not by any means arrayed in opposition to this bill" was
5
hardly necessary. O ’Shaunessy was himself a lawyer.
^ Tague (D, Mass.), Borland (D, Mo*}, Schall (Prog., Minn.),
Jouett Shouse (D, Kans.), Cline (D, Ind0), Green (R, Ia.)„ CR
1582; Appendix: 205, 249, 235, 246; 2032. Shouse was to be
president of the American Liberty League, organized in 1934 to
defend the Constitution.
2 CR Appendix 242. Keating submitted as an extension of his
remarks a legal brief by Professor Parkinson covering eight
pages of small type. CR Appendix 221-229.
3 CR 2008c 4 Towner (R, la.), Loc. cit0
5
O ’Shaunessy’s language was less colorful than that of Represen
tative Howard, one of the two members of the Georgia delegation
Prejudice against lawyers was not the most common basis for
charges of hypocrisy, however. In at least a dozen clear instances
in the House there was reference to a long-standing use of con

stitutional argument against progressive legislation or to evidence
of inconsistency on the part of the opposition. In the most memor
able of these statements, a Mississippi Democrat observed that
"every bill for the real benefit of the people has to run the
gauntlet of its opponents, who claim it either unconstitutional or
socialistic. "•*• This attitude did not necessarily go hand-in-hand
with disrespect for lawyers. Thus, after making the point, Repre
sentative Cooper, a Republican from Ohio who was a railroad engineer
and sometimes laborer and fireman, added, "I am not a lawyer, and
therefore," he said in axiomatic fashion, "I am not qualified to

~ g
pass on the constitutionality of this measure."
References to inconsistency were less frequent than a general

charge that constitutional argument was a smokescreen. On the
first day of debate, the observation was twice made that some of
the Southerners in opposition had "yesterday voted for a roads
who voted for the bill. Howard said, to applause, " . . . what do I
care about the opinion of a fly-specking technical lawyer about the
constitutionality of a question when it liberates from ignorance a
certain class in my State." CR 8016. Howard was a self-educated
lawyer.
Quin. CR 1583-1584. Quin defined the issue in florid oratory.

"Who says protect the poor children . . . ? Motherhood, humanity,
sentiment, and God. Who says kill this bill? The American capi
talist . . . . " Quin's "clearly drawn" issue, whether to preserve
the children or-to "grind-their sweat and blood into dollars" was
matched by a Massachusetts Democrat, Tague, who described the voice
of the opposition as the voice of "unscrupulous capitalists trying
to commercialize in the blood of innocent children." CR 1581.
2 CR 8018.
bill . • • for purely local roads and bridges."^ It was left to
Meyer London, however, to point out the inconsistency of opposi

tion by the National Association of Manufacturers, which had argued
before state legislatures that regulation must be uniform*2

Occasionally, the charge of hypocrisy was denied within the
ranks of the bill's supporters* Following the speech by London,
the first speaker during the general discussion in the Committee
of the Whole in the House began by saying, " • • . 1 have no sympathy

with the idea frequently expressed here today by those who in their
zeal for this measure say that considerations of constitutionality
are not made in good faith, or are to be neglected." A similar

statement by another member — "The distinguished gentlemen . . •
are actuated, I doubt not, by a high sense of duty" .. was followed
by what appears to be an explanation: "They are eminent lawyers."4
Impatience with the constitutional debate continued to be
expressed in varying degrees; and by the time the last two speakers
for the bill arose in the House, impatience was expressed bluntly:
^ Dalllnger (R, Mass.), CR 1600; also Shouse (D, Kans.), CR

Appendix 233. A bill providing for grants-in-aid for rural post
roads was voted by the House on January 25, 1916. CR 1536-1537.
Every member who voted or was paired against the child-labor bill
voted for the roads bill with the exception of Parker, a New Jersey
Republican, and a representative from Texas.
2 He continued, "The child bears the brunt • • . while the merry
argument goes on. -What will it be, the State of the Nation,that is
to save the young from perdition? The answer of the commercial soul
is — neither." CR 1591.
3 Sherley (D, Ky.), a lawyer; CR 1592.
4 Hicks (R, N.Y.), a banker; CR Appendix 261,
"I am getting a little tired, a little impatient,1' said Alben
Barkley of Kentucky, "• . . o f hearing the standpats on both sides

of the Chamber hide behind an antiquated interpretation of the
doctrine of State rights."1 The final speaker, a Democratic news
paper publisher and bank director from Indiana, spoke vnth a kind
of humor:
Mr. Chairman, I have seen the Constitution of the United
States cuffed about so much on this floor during the
past eight years that, not being a lawyer, I have about
reached the conclusion that there is some doubt about
the constitutionality of the Constitution of the United
States.
In the Senate, among the twenty-eight members who spoke for
the bill eighteen spoke of constitutionality and of these only
3
five can be said to have charged the opposition with hypocrisy.
Senator Kenyon spoke somewhat hesitantly, as he often did, but
suggested his sense of unfair dealing by quoting Dr. Johnson's

definition of patriotism, "the last refuge of a scoundrel."^
Another minority leader, Senator Cummins of Iowa, took the con

stitutional issue with aplomb. He did not charge hypocrisy; but,
not sharing the fears of his fellow Republican, Brandegee of
Connecticut, who voted against the bill, he chided Brandegee for
1 CR 2033.
2 Barnhart. CR 2033-2034. The Congressional Record reports
that laughter followed the remark quoted above. Barnhart also
concluded that "Constitution or no Constitution" he was for the
bill.
3 The phrases used in the House to describe hypocrisy were added
to by Senator Husting of Wisconsin: "the bugaboo of the Constitu
tion", "the constitutional whip", and~"the cry of wolf." In per
haps- the most eloquent language-used to express the point, he ex
claimed, "Are things constitutional only when they are bad or in
.
different -and unconstitutional only when they are good?" CR 18207-
12212
4 CR 12214.
//O
turning "all at once into so uncompromising an advocate of State
rights." On the whole, the leaders of the bill in the Senate were
matter-of-fact about the constitutional issue: it was part of the
legislative battle. This temper was expressed in m a t u r e fashion
by Robinson in his opening speech:

Opposition to the bill however firmly it may, in fact,
be imbedded in the policy of the legislation, advances
its front along the line of alleged unconstitutionality.
This issue is serious, but need not be alarming. Every
progressive measure which Congress has enacted during
the past SO years has encountered opposition on this p
ground from some of the ablest lawyers in the country.
In the Senate there was little more impatience than that
shown by Senator Kenyon before the constitutional discussion had
even begun, when Kenyon remarked that once such discussion got
started, • . w e will never get through."3 There was one marked
exception, however. On the fifth day on which the bill was dis
cussed, shortly before the final vote, there arose a voice of im
patience with which similar voices in both House and Senate could
hardly compare. Senator Harry Lane, a physician and Democrat from

Oregon, had previously reacted with exasperation in his battles
CR 12226. Another Republican, but one with far less aplomb

than Cummins about the constitutional problem, Senator Works of
California, also made a charge of inconsistency. He could feel
little sympathy for the South, he said, because Southern Democrats
were among those responsible for "this tendency to surrender States'
rights." "I have come to think that the representatives of the
South will-surrender any of the sovereign rights of their States
if they can get a sufficient price from the National Treasury."
CR 12213. Unlike Cummins, Senator Works was not chiding a political
party bedfellow. Yet, although he voted for the bill, he was speak
ing to bedfellows; for he agreed with those whom he was accusing
of inconsistency that the bill was unconstitutional. See below p . / j s .
2 CR 12055. 3 CR 3048.
with permission of the copyright owner. Further reproduction prohibited without permission
for the insane ana the Indians;1 and he reacted in that manner now
for “our own white children#“ After hearing Ellison D# Smith of

South Carolina conclude a speech with the words, “I would infi
nitely rather see the children of my State suffer some of these

evils that have been portrayed than to see their rights as citizens
of the State d e s t r o y e d L a n e arose and attacked hypocrisy, legal
ism, and — ";)ust the minute that it interferes with the general
welfare” — the Constitution.2 The national government had the

duty to protect the general welfare when the States failed to do
so, he said# He would vote “for anything” that would eliminate
child labor and would say “unpleasant things” about the Constitu
tion and the courts. When the Constitution furthered the general
welfare, however, “I am willing to burn incense and pour oil before

its altar and kow-tow to it." Meanwhile, he was not interested in
“tweedledee and tweedledum” arguments, “constitutional cavilings”,
and the “fine whittlings of law points.”
Members of the Senate and of the other House are sub

merged with a vast mass of work, and, as in connection
with this bill, by considerations of constitutionality.
Long arguments and speeches, many of them lasting hours,
have been made, with no two Senators agreeing upon the
issue, until we are buried in details, immaterial, if you
please, in the long run, to the people of this country,
1 The National Cyclopaedia of American Biography. 18: 212-213;

New York Times, May 24, 1917, p. 13.
^ For Lane's speech, see CR 12289-12294. Although Lane and E. D.
Smith differed in the respect which they paid to constitutional law,
they were in agreement on the existence of a law higher than that
of the Constitution. “The law of nature,” said Lane, “controverts
and disproves any theory of • . • any constitutional lawyer that
the child should have the privilege and the freedom of breaking
down its tissues.” CR 12290. “But a higher law than you or me,”
said Staith, “ . has decreed-that circumstances shall come when
the child shall be called upon to make a sacrifice for those that
brought him into the world.” CR 12287.
/v
in my opinion. In the meantime little children are

working, their little Ungers bleeding . . . North and
South • . . while our attention is distracted. . . . I
have no great amount of patience with the mincing of
words as to whether or not the lives of children can be
measured and parceled out under the terms of the Consti
tution.
The failure of Lane's colleagues to reply to him with any

heat was perhaps in itself recognition of the exceptional nature
of his speech.'1' No other senator spoke quite as Lane did. Fur
thermore, contrary evaluations of the constitutional debate were

expressed. For example, the second speaker preceding Lane,
Senator Colt of Rhode Island, had said, " . . . when I see Senators
on one sice and the other debating for days in the most able, pains
taking and. conscientious manner the constitutionality of this act,
I realize that we need have no fear of the safety of our Federal

g
institutions."
The opposition placed upon constitutional argument the values
suggested by Colt's statement, and in the Senate there was tacit
agreement that sufficient time was allowed for debate.3 But in
the Senate as well as in the House, the opposition's strictures
on duty were a denial, in effect, that Congress was debating con-
1 Lane was also exceptional in another respect: not only did

he appear unconcerned about the distinction between policy and
power, a distinction to which respect was usually paid, but he
was apparently confused about it. In supporting his description
of the Constitution as a bulwark of special interests, he described
the condition of the Indians as an example of a condition "permitted
under the Constitution." CR 12293.
2 CR 12286, See below p. / S o .
3 Gallinger noted "a great many empty seats" on the last day of
the debate. A quorum call produced 53 senators. CR 12286. An
other call on the preceding day produced only 49. Boies Penrose
had made the point of order. " . . . this debate is impressive and
interesting," he said, "and I think Senators ought to be here to
listen to it." CR 12203.
stitutionality in a sufficiently “painstaking and conscientious
manner."'*' “Some gentlemen seem amused that such a question should
be asked," said Representative Watson.^ ". • • we sneer at it,"
said Senator Hardwick.3 As to the elements which made up the pro

per “manner", there was general agreement with those members on
the other side who considered constitutionality a problem mainly
for lawyers. No member of the opposition, however, made an attack
like that of Keating on "clever and not always scrupulous lawyers"

although the necessity of choosing among lawyers was obvious. “I
am not a lawyer," said one opponent in the House. ". . . 1 prefer

the opinion of the 18 lawyers who composed the Judiciary Committee
of this House during the Fifty-ninth Congress . . . . than that of
the members of the Committee of Labor of the present Congress."4
-1- In regard to Congressional duty, see below p. lAJ'f'f.
2 CR 1587.
3 CR 12067, But after victory in the Court, Hardwick looked

back upon the debate as a conscientious and definitive one. See
below p./Sîn regard to the debate on the child-labor tax.
4 Page (D, N.C.), CR 1579-1580. Ten of the fourteen members of
the Labor Committee were lawyers.
D. How were constitutional .judgments defended?
1. Introduction
Certainly, everyone who voted had in some way solved the
constitutional problem. Why, however, was one constitutional
judgment reached rather than another? Seme answers to this
question have already been suggested by the inquiry into the
politics of the bill and into the attitudes of Congressmen toward

the constitutional problem. But there was another and more arti
culate level on which Congress moved; in the manner of lawyers

and judges, there was much discussion about the meaning of the
Constitution and the decisions of the Court. This debate pro
vides no adequate answers to the question of why certain judgments
were made. It may suggest how those justments were arrived at.
At the least, the debate indicates how the solutions to the con
stitutional problem were defended or rationalized.
2. The Constitutional document
Both sides expressed devotion to a Constitution which each

saw in its own mirror.*1- Advocates of national action considered
-1- As applied to some members, devotion is a strong word. Senator

Lane, for example, had what might be called an instrumental appre
ciation of the Constitution. See above pp , / t o - t i s . . The Socialist
representative, Meyer London, ridiculed the notion that it was
necessary "to go back to 1787 to find what we shall do . . . . We
of this generation have the right to legislate as time demands."
When asked whether he would vote for a bill if it were "in viola
tion of the Constitution," he replied, "Certainly not. -I consider
myself bound by the Constitution." CR 1591. However, at no time
during the debate was London asked whether he would consider him
self bound by a Supreme Court decision. For his reaction to Hammer
v. Dagenhart, see below p. i s
Chief Justice Marshall their progenitor and spoke of the Constitu
tion as "a live, virile instrument", "an ever-expanding, and ever
growing instrument."! With changes in public opinion, said Senator
Cummins, citing attitudes toward liquor and lotteries, "the com-

p
plexion and meaning" of that instrument changed* The opposition,
too, had a venerable progenitor, Chief Justice Roger Taney, who

was quoted at the conclusion of the House minority report and on
the floor. In speaking of the necessity that the Court should not
be "the mere reflex of the popular opinion or passion of the day,"
Taney had said that the Constitution spoke " . . . with the same
meaning and intent with which it spoke when it came from the hands
of its framers, and was voted on and adopted by the people of the
United States."3
There was a corresponding disagreement about the role of the
Supreme Court. During the hearings, James Eknery had stated that
in the Constitution there were "79 affirmations as against 115

negations."4 The Court, it seemed, had the duty of preserving
that balance. On the other hand, according to a Republican repre
sentative from Iowa, " . . . constitutions are not intended as re
straints or impediments to progress. Rather are they designed to
aid the growth and development of the people. This attitude was
presented most elaborately by Moses Clapp, the Republican Senator
! Rep. Hicks (R, N.Y.), CR Appendix 261; Sen. Husting (D, Wis.),
CR 12211. See also the remarks of Kenyon and Robinson, CR 12218,
12055; and Keating, House Hearings., 206.
2 Senate Hearings. 278.
3 House Minority Report, 12; CR 1591. Taney's words are from

the Dred Scott case, 19 Howard 393 at 426.
4 House Hearings. 172. 5 Towner, CR 2009.
from Minnesota. The United States had become a nation, he said;
and thanks to judicial construction of the commerce clause, the
national government had "year after year . . . gone into realms
■undreamed of."^
If the Constitution itself had been relied upon to provide
the answers to questions of constitutionality, there would have

been no lack of disagreement. No member, however, asserted clearly
that constitutionality could be determined by looking at the Con
stitution alone although some members intimated that this was pos-
g
sible. One, a self-educated Mississippi lawyer, stated that he
served his oath by interpreting the Constitution "from my own in-

3
tellect and conscience." Senator Tillman and a South Carolina
colleague in the House both stated that though they were not law
yers they had "common sense" — "good common sense is so often good
law," said Tillman, "that I used to be known by the self-given
title of ‘the cornfield lawyer of the Senate.'"^
5. Decisions of the Supreme Court
The consensus of opinion, however, was expressed by the junior
senator from South Carolina, Ellison D. Smith, who like Tillman

was not a lawyer. Constitutionality was a matter to be covered
■^See CR 12297-12299. For a fuller presentation of Clapp's

opinions, see below pp.
2 Although he asserted that "no provision of the Federal Constitu
tion is plainer and more unequivocal" than the commerce clause, Re
presentative Gray (D, Ind.) went on to remark that "this provision
has been before the Supreme Court time and again." -CR Appendix 257.
3 Quin, CR 1584.
4 CR 12294; Aiken, CR 2050. For Tillman's exchange with Beveridge
in 1907, see above pp.o?fc~<2 7.
"from the legal standpoint", he said, by persons professionally
qualified*'*' Thus, Professor Parkinson before the House Committee

discussed "general considerations" briefly and, at greater length,
"the technical considerations." The latter required an examina

tion of the principles and provisions of the Constitution; the core
of his argument was reached, however, when he said:
Now • • • we might just as well get down to what has
been done and approved by the Supreme Court, as the
very best basis for judging what we can do on this
proposed legislation.2
Analysis of judicial precedents may have been "the very best
basis for judging what we can do" because of a Congressional obli
gation to follow the Court. The nature of that obligation is dis
cussed later in this chapter. The decisions of the Court served
not merely their reputed and negative function of restraining the
majority. The decisions were "tools" and afforded both sides a

basis for substantiating a legal argument. Senator Brandegee had
used the neutral word "tools", but his meaning could have been
better expressed if he had spoken of judicial decisions as "sign
posts" or a " g u i d e . Y e t the notion of "tools" was a realistic
one. Parkinson had warned the House Committee, apparently without
intended irony: "On a question like this which is new and which
arises under a general clause of the Federal Constitution, it is
perfectly possible for any lawyer who is familiar with the decisions
CR 12287. 2 See House Hearings, 176-186.
3 Brandegee, CR 12229.
^ Parkinson, Senate Hearings, 122; Borah, CR 12073.

of the Supreme Court" to do what any one can do with the Bible.
". . . you can prove almost anything by it."1
But it was precise proof which the opposition demanded. In
the House, Watson, Byrnes, and Britt, and in the Senate, Overman
and Brandegee, offered challenges like that of Representative Webb,
who said:
I challenge the advocates of the bill to cite one case
on all fours with it that has been passed upon during
the last 125 years by our Supreme Court which will up
hold their contention, to wit, the right of the Federal
Government . . . to go inside the individual States and
regulate and control their manufactures and method of
production.2
Only Watson qualified his challenge, when he said that "nonaction
and nonassertion" were "not . . . conclusive, of course" but

3
"strongly persuasive" that the power had been "discredited."
This "all fours" argument was dismissed most effectively by
Senator Robinson of Arkansas. It was a "feeble argument at best,"
he said, and
in its last analysis, equivalent to maintaining that
nothing can be done which has not already been done —
a manifest fallacy approaching absurdity. Congress is
daily passing new laws to meet new conditions. That
there are no exact precedents in the decisiore of our
courts is, of course, due to the fact that Congress has
not heretofore passed a child-labor law, and the subject
has not, therefore, come under direct consideration by
the courts.
1 House Hearings. 177-178. Later, when Parkinson quoted an 1891

case, Representative Denison (R, 111.) asked, "Is that essential
to the decision, Doctor, there, or dictum of the court, in your
judgment?" Ibid.. 181.
2 CR 1594. See also CR 1587, 1576, 2012, 12195, 3053, and

House Minority Report, 6. The demands of Brandegee and Overman
for "a single case" concerned the prohibition of "an innocent
subject of commerce."
5 CR 1587.
4 CR 12056. See also the remarks of Sen. Husting (D, Wis.) CR 12212.
For some members, there was one case, the Lottery Case,
which had the significance of a case on all fours. " . . . having

read . . . the Lottery case," Representative Kenneth McKellar of
Tennessee said, ". • . 1 have no doubt whatever about the constitu
tionality of this m e a s u r e . T h e persuasiveness of this case was
best illustrated in the remarks of a Democratic representative

from Kentucky, J. Swagar Sherley. Sheriey was the only supporter
of the bill to state that a member if in doubt has a duty "to re-
solve that doubt against the constitutionality. Howevermuch
this rule might immobilize members who, like him, identified their
interpretation of the Constitution with that of the Court, Sherley
saw his way clear. There was perhaps no subject which he had
studied as much as he had studied the commerce clause, he said,

"and after reading and today re-reading, the decision of the Su
preme Court in the Lottery cases, I am forced to the conclusion
that this Congress has power to deal with the matter in the way
proposed."
The leaders in behalf of the bill, however, although they
cited the Lottery Case more prominently than any other, did not
claim that "the precise question involved" had been decided.4 In

the Lottery case, said Kenyon, the Court had gone "a long way • • •
but even in that case the question was left an open one."^"There
are decisions, however," said Robinson, in concluding his rebuttal
1 CR 2014. Representative Van Dyke (D, Minn.) was in agreement.

". • . it is only necessary to refer to one decision." CR Appendix
212-213.
8 CR 1592. 3 CR 1593.
4 The quoted words are Denison’s (R, 111.), CR 2019.

5 CR 3048.
to the "all fours" argument, " . . . which in principle fairly
seem to justify this l e g i s l a t i o n . T h e s e decisions — for Robin
son, mainly the decisions in the lottery and white slave cases —
2
were "progressive extensions" in the interpretation of the com
merce clause, and the majority's case was based upon an expectation
that they constituted a trend which would continue. In the light
of the precedents, said Meyer London, ". • . it is hard to see how

the courts can refuse to sustain" a child-labor act.3
The minority was prone to ignore rather than to deny the trend.
The House minority report had cited over a dozen cases; but, as
Representative Lenroot said on the floor of the House, with only
a little exaggeration, ". • . i n practically every case they have
cited they go back to the early days of this Republic." "only

passing comment," he said, had been made on the Lottery Case and
no comment on the white slave and pure food cases A During the
debates, on the whole, these cases were not shrugged off by the
opposition as irrelevant or unjustified. They and other precedents
were frequently distinguished or limited, or their decisiveness was

questioned. Although Hardwick, at one point, stated that he had
never thought the Lottery Case represented "sound law", he argued
that the bill could be "clearly differentiated" from it.3 In the
^ CR 12056. In regard to the following sentence in the text, see

CR 12061.
p
The quoted words are from an opponent, Senator Thomas (D, Col.)
who thought that "our inherent power under the Constitution" was
not sufficient to-support the bill. CR 12131.
3 CR 1592. These decisions "have completely knocked the props

from under" the minority's argument, said Rep. Kennedy (R, R.I.),
CR Appendix 212.
4 House Minority Report, 7-10. CR 1584-1585. The minority report
did refer to the pure foods and the white-slave legislation: it
majority's cases, said Webb, chairman of the House Judiciary Com
mittee, there was "a distinguishing feature . . . . every article
that has been excluded . . . has been an article that was bad in
itself, immoral, or fraudulent,"■*-
There was disagreement also about the standing of the deci
sions, The House minority report in arguing that production could
not be regulated quoted "the celebrated case" of Kidd v. Pearson,
~ 2
decided in 1888, and cited the Sugar Trust case, decided in 1895.
Reference to the "thoroughly discredited" Sugar Trust case, said
Kenyon, indicated to him that the opposition was "in legal extremis,
Hardwick sharply disagreed; that case had been neither discredited,
4
he said, nor overruled, . On the other hand, the circumstances in
which the Lottery Case was decided apparently discredited it from
the beginning; it had been "thrice argued" and decided by a divided
-
Court, Furthermore, it was said, the "superstructure of constitu
tional interpretation" which had been erected since then was based
0
upon "incidental dicta," Senator Borah, an irrepressible speaker
on constitutionality, agreed that the fact of "a bare majority" and
"strong dissenting opinions" had made of the Lottery Case "question
able law," But all doubt had been removed by subsequent decisions,
he said.^
referred also to "the so-called 'white slave' cases," but without

any formal citation. House Minority Report,-9,
5 CR 12075-12076
CR 1573, 2 House Minority Report, 7.

3 CR 3046-3047 4 CR 12076,
3 Watson (D, Va.), CR 1590. Hardwick, CR 12077. The white-slave
case was also a "very labored decision", said Hardwick. CR 12078.
g ~ ’
iV a ts o n , .CR 1 5 9 0 . 7 Qft 1 2 0 8 3 ,
Any organized recapitulation of the Congressional discussion
of judicial decisions would supply order to a debate in which there
was little order. If there was pattern in its progression, that
pattern may be described as a kind of whirling movement, sometimes
slow or stationary, sometimes rapid and unpredictable. Arguments

were continually recanvassed. Sometimes there was a novel presenta
tion, but usually this was a mere reformulation of judicial doctrine.
Rarely was a constitutional argument developed outside of the frame
of reference of previous decisions. Kenyon, for example, asserted

only incidentally that "the consumer is interested in . . . knowing
what goods he is to use."l But the importance of this assertion
was not insisted upon, nor were its implications presented. Kenyon
took for granted that "the difficult proposition" was the distinc
tion between what happens at the beginning of commerce and what hap
pens at the end. In the latter category was found justification

2
for the lottery and white slave legislation but not child labor.
Borah, also, assumed that the distinction between the origin
of commerce and its destination was significant although he too

made an assertion that was not frequently made during the constitu
tional debate. There was opposition to the bill, he said, because

"it is going to hurt somebody": an interstate market made the use
of child-labor profitable.3 Yet this point was not pressed, and

Borah agreed that "a serious question to everyone" was the relation
between production and transportation.4 Borah was less interested
in defining the range of commerce than in appearing as the Senatorial
1 CR 3055 and 3052. 2 CR 3049. See also 3051.
3 CR 12084-12089 4 CR 12087
spokesman for the proposition that, according to the decisions,
Congress had the police power within the channels of interstate
commerce,'*' This was the kind of question which aroused interest,

and perhaps an example of originality was a remark made by George
Sutherland of Utah during a discussion of Congressional police
power, Sutherland, who Kenyon said "would adorn the highest court",
interrupted an exchange between Borah and Brandegee to suggest the
g
phrase "power analogous to police power."
Although it was said that of course a particular constitutional
question "can not be argued here as it would be argued before the

3
Supreme Court," there is no reason to expect that if there had
been such argument the Senate's lawyers would have been any more
in agreement than the Court was to be. However clearly the light
from past decisions might be refocused, inarticulate premises cast
a shadow upon it. What has been described as a highly articulate

level of constitutional discussion in Congress, the analysis of
judicial precedents, reached an almost inarticulate point when
Brandegee, who opposed the bill, explained:
I think every lawyer • • . must feel innately and

intuitively that in certain respects, which it may
be somewhat difficult to define, this does present
a somewhat different principle from that involved in
any of the previous cases. I feel so myself, and I
feel also that the question is such a subtle one that
it is not at all easy for me to state exactly, es
pecially so that a layman would follow me, the exact
point in which this bill proceeds upon a principle 4
which is not involved in any of the previous decisions.
1 CR 3054, 12065, 12080-12081, 12087.

2
CR 3054. Kenyon's compliment appears in CR 3052. Six years
later, Sutherland was appointed an Associate Justice, and Kenyon
himself became a federal circuit court judge.
3 Sen. Colt (R, R.I.), CR 12286. 4 gR 12224.
4. Commentaries on the decisions
The opposition supplemented judicial decisions with many
non-judicial authorities. The authority most frequently cited was
Congress itself speaking through the House Judiciary Committee of
1907.^- Generalities were quoted from legal commentators — Prentice

O
and Egan, writing in 1898 and Tucker, in 1899. But foremost were
the explicit injunctions of Watson, whose volumes on the Constitu

tion were published in 1910 and quoted at length the report of the
House Judiciary Committee of 1907. In presenting his own case,
Senator Kenyon paid respectful notice to the opposition's authori

ties, even inserting in the Record the report of the Judiciary Com
mittee, an especially considerate action since the opposition had
already called the attention of Congress to that report about a
**- The Judiciary Committee's report was quoted by Kitchin and

Emery before House and Senate Committees, in the House Committee's
minority report, and some half-dozen times in the House. Later, it
appeared again on the floor of the Senate. House Hearings. 143, 173-
174; see also the remarks of Parkinson, ibid., 178; Senate Hearings,
95, 257; House Minority Report. 5-6; CR 1572, 1574, 1577, 1579, 1583,
1587, 2031, 12196.
p
E. Parmalee Prentice and John G. Egan, The Commerce Clause of
the Federal Constitution, in House Minority Report. 11; CR 1589.
John Randolph Tucker, The Constitution of the United States, 2 vols.,
in House Minority Report. 7, 9; Senate Hearings. 98; CR 1589, 12201.
Opposition speakers also cited generalities from Story's

Commentaries. CR 1587; Abel P. Upshur, A Brief Inquiry into the
True Character of Our Federal Government. published 1840, CR 1569,
1587; Frederick N. Judson, The Law of Interstate Commerce and Its
Federal Regulation, Third Edition 1916, CR 12201. Kenyon found
occasion to cite Story, CR 3049; and Borah to cite T. M. Cooley's
Constitutional Limitations, CR 12082.
3 David K. Watson, The Constitution of the United States. 2 vols.
(see I, 523-524), in House Hearings. 148-149, 151; Senate Hearings,
107, 257; House Minority Report. 10; CR 1573, 1589, 12198.
dozen times. Kenyon may have had his tongue in cheek because
the last authority he recognized, Professor W. W. Willoughby of
Johns Hopkins University, had recently written an unpublished memo-

£
randum in which in the words of Sutherland, “he recants." Whatever
doubt Willoughby's change of mind may have cast upon the usefulness
of authority, both sides claimed his support during the hearings.
Kitchin stated to the House Committee that he understood Willoughby
had “modified his position.” “I think that is true," Kitchin said,

but he proceeded to read from the Willoughby text of 1910 "for its
reasoning."3 Kitchin's understanding about Willoughby's change was

correct, said Parkinson. He himself and Kitchin agreed, he said,
that "the situation in a nutshell" was whether there was a distinc

tion between protecting the consumer and protecting the producer.
In the memorandum, Willoughby had written that the distinction "will
probably not be held controlling."^ A month later, James Emery

said to the Senate Committee that this interpretation did not ap
pear in Willoughby's latest edition and that it was still true,
1 CR 3046-3047. 2 CR 3047.
® House Hearings. 151-152.
4 Ibid., 187. Professor Frank J. Goodnow, president of Johns

Hopkins, said Parkinson, had "equally emphatically" agreed with
Willoughby. Loc. cit. In 1911, in Social Reform and the Constitu
tion, 83-93, Goodnow said that Willoughby's distinction between
consumer and producer was "more than doubtful." It was possible,
he had concluded, that using the analogy of Beveridge's child-labor
bill, " . . . Congress could practically banish from our soil evil
conditions of labor." During the 1916 debate, Goodnow was not of
fered as an authority by the supporters of the bill.
There was another former president of the American Political

Science Association who was referred to. Professor Simeon E. Bald
win, said Kenyon, supported the power of Congress to pass the bill
but did not support the policy. CR 3050. In his presidential ad
dress to the A.P.S.A., Baldwin, who had been a chief justice and
governor in Connecticut, had indicated general agreement with Good
now. 6 American Political Science Review 1 2 , February 1912.
/<16
therefore, that not commentator "of recognized authority" approved
the hill,1 On the other hand, before the same Committee, Kitchin
accepted the memorandum, again cited the Willoughby of 1910, and
added, "He told me he had qualified his opinion, but that he was
going to look into it again. On the floor of Congress, the lead
of Kitchin and Snery was not followed; there, Willoughby was ig
nored.
There were other appeals by the opposition to authority, that
of Jefferson, Madison, Lincoln, and former members of the Senate

3
including Elihu Root of New York. More frequently quoted was ex
president and future chief justice William Howard Taft, who had
stated explicitly in a lecture in 1913 that child labor bills based
on the commerce power would be "a clear usurpation of . . . State's
rights."^ The same conclusion had been drawn by another and, in

the circumstances, even more impressive authority, President Wilson
himself — "not a great lawyer," according to Senator Hardwick,
". . . but . . . a man of wonderful intellectuality." Wilson had
said that the proposals for a national child-labor law embodied

g
"obviously absurd extravagances of interpretation." But Wilson,
-i 2
1 Senate Hearings. 257-258. Ibid.. 107.
® See House Hearings, 160; CR 1572, 12067-12068, 12200. General

ities about centralized government were quoted from Root's Experi
ments in Government and, the Essentials of the Constitution. 1913.
Addresses by Justices Brewer and Hughes before bar associations were
also cited. Senate Hearings, 248; CR 12200.
4 See W. H. Taft, Popular Government. 1913, pp. 142-143. House

Hearings, 146; House Minority Report, 10; Senate Hearings. 104-105,
247; CR 1573, 1580, 1583, 1589, 12066, 12198, See above p.
5 CR 12069.
6 See Woodrow Wilson, Constitutional Government in the United
States. 1908, p. 179.
like Willoughby, had changed his mind or, at least, had not been
deterred by his views on constitutionality from urging the passage
of a politically expedient bill. Neither majority nor opposition

Democrats gave prominence to Wilson on the constitutional question.
However, to Republicans taxed with inconsistency, he proved useful

as the most eminent example of a change of mind. Thus, Smith of
South Carolina said of the former opinion of Sutherland, who was

looked upon as a Senatorial authority on the Constitution, ". . •
if in common parlance we have any flopper to beat that, he is surely
some flopper." But the change, replied Gallinger, was "not more
radical than that of the President of the United States.
5. How were doubts resolved?
How did the members of Congress resolve their doubts about the
constitutionality of the bill? The problem was recognized during
the House hearings by Professor Parkinson. Congress had an "ulti

mate responsibility" about questions of policy, he said in his
opening remarks, but as to constitutionality, " . . . you do not
need to have it demonstrated to you beyond all doubt . . . . If

you did, there would be no progress in our constitutional law."
^ CR 12301. For further discussion of Wilson, see CR 11371, 12070-

12071.
In support of his argument that only the States could regulate

child labor, Senator Overman quoted not only Wilson but also a
message from Theodore Roosevelt to Congress. CR 12198. Kenyon
replied that ex-president Roosevelt strongly supported the bill
and that as president he had earnestly advocated a national law.
CR 12214. Later, a quotation which Kenyon had promised to supply
was not forthcoming. The memory of Representative Gardner of
Massachusetts was also uncertain. Beveridge, he said, had been
one of many who followed Roosevelt's lead. CR 1584.
Lotteries and white slave traffic would still be thriving if
Congress had refused to pass regulatory legislation "merely because

there was a doubt of its constitutionality, merely because they
were fearful lest the Supreme Court of the United States might not
vote it constitutional."^
Parkinson did not distinguish clearly between doubt about

one's own interpretation about the Constitution and doubt as to
what the Court would do -- a lack of clarity which was often ob
vious in the debates. Later in the hearings, Jsines Emery assumed
that Parkinson had been speaking of personal doubt and criticized

p
the notion that doubts could be passed on to the SupremeCourt.
The historically correct principle, he said, was that courts re
solved their doubts for a measure because the legislature had re
solved its doubts against it. Emery offered as an authoritative
statement a quotation from Judge Thomas M. Cooley's General Prin
ciples of Constitutional Law, a quotation appearing so frequently

in the debates that it bears repetition in full. Cooley had
written:
Legislators have their authority measured by the

Constitution . . • and they take solemn oath [sic]
to obey andsupport it. . . . To pass an act when
they are indoubt whether it does not violate the
Constitution, is to treat as of no force the most
imperative obligations any person can assume. . . .
Indeed, it is because the legislature has applied
the judgment of its members to the question of its
authority to pass the proposed law, and has only
passed it after being satisfied of the authority,
that the judiciary waive their own doubts and give
it their support
House Hearings. 177. See also his legal brief, CR Appendix, 229.
^ House Hearings. 204.
The problem was not inquired into by the House Committee;
further discussion was interrupted when the Chairman said, as

already noted, *'I think Members of the Congress understand their
duties very well."’*' On the floor of both houses of Congress,
widely varying notions of duty were expressed. Proponents of the

bill were generally prepared, with one exception,2 to resolve
their doubts in favor of the bill and to pass those doubts on to the
Court for final determination. The opponents, on the other hand,
emphasized the duty of Congress to resolve doubts against the bill.
The few comparatively extended discussions of the problem indicated,

however, that the differences were less wide than they appeared to
be.
A typical discussion arose soon after Robinson had opened the

debate in the Senate, when Hardwick of Georgia quoted some passing
ramarks which Kenyon had made in February.^ Kenyon had stated in

his usually candid way, 111 do not know, if Congress has a doubt
about the constitutionality of a proposed legislative enactment,
3
Thomas M. Cooley, The General Principles of Constitutional Law
in the United States, Third Edition, 1898, 172. See House Hearings.
204; Senate Hearings, 246; House Minority Report, 4; CR 1573, 1576,
1579, 1587, 12068, 12074, 12196, 12214, Appendix 1285.
Representative Denison (R, 111.) called attention to Cooley's

lack of legislative experience and asserted that his writings were
out of date. CR 2019.
Senator Husting (D, Wis.), without reference to Cooley, stated

a different principle: " . . . the very wholesome, salutary, and
sound doctrine • • • that every act of Congress is considered
constitutional", by the courts, "unless clearly shown to the con
trary" was also "sound practice and principle" for Congress. CR
12212 . * -
^ House Hearings. 207. 2 See above p . 119.

3 CR 12073.
13 0
just what its duty is.” 1 Each member had to determine that
for himself, he said. It was true that a court’s duty was to
allow ’’every presumption” in favor of the bill; ’’hence” —
but he did not conclude that the reverse was true for Congress —
’’Congress should carefully consider constitutional questions.”

Without further explanation, Kenyon concluded:
But it does seem to me that a mere question in one’s

mind as to whether or not a court may hold a question
unconstitutional is not enough to warrant voting
against a measure even where it may fairly be said
to be a somewhat doubtful question.
These remarks, said Hardwick, expressed ”a view that is
all too prevalent among careless and inexperienced legislators”

and even among ”good lawyers.”
You often hear discussions in the cloakrooms, and some

times upon jrhe floors of both Houses . . . in about
this way: ’Vfell, I am very doubtful about the constitu
tionality of this legislation; but, after all, the courts
must construe it. Therefore I am going to vote for it
and let its constitutionality be decided by the courts.’
”The very reverse” was true, said Hardwick, who drew sharply
the conclusion which Kenyon had sidestepped.
Since the courts give every doubt in favor of the

constitutionality of legislation, for that very reason
it is the solemn, bounden duty of legislators to resolve
every doubt against the constitutionality of measurese
Although other opponents of the bill spoke as categorically,
^ CR 3056o ^ Loc. cit.

2
CR 12073. Kenyon himself, however, was credited by Hardwick
with having qualified his remarks.
/3i
1 2
or nearly so, this was undoubtedly "an extreme position."
It provided a straw man for various speakers, who easily attacked
its "entirely false premise" and its "logical effect." Upon
cross-examination, Hardwick modified his position. When reminded

by Kenyon that his rule would have made impossible the passage of
an employers’ liability act, a pure food and drugs act, a white
slave act, Hardwick replied that he had opposed those acts because
they were unconstitutional. A United States bank would have been
impossible, Walsh of Montana suggested. Thus pressed, Hardwick
proceeded "to interpolate the word ’reasonable’" into his rule.

Only a reasonable doubt, a "serious" or "grave" doubt, should be
resolved against a bill, he said.

There was probably general agreement with Hardwick’s position
as modified. Many members who had spoken of resolving doubts for
the bill or passing their doubts on to the Supreme Oourt had used
language similar to Hardwick’s to describe circumstances when they
would as a matter of course vote against a bill on grounds of

constitutional doubt. Such votes would come from Robinson if he
were "convinced" a bill was unconstitutional, from Pomerene if he

had "really serious doubts", from Borah if he found that his"mind
were at rest" on the matter, and from Kenyon if he had "a fixed
conviction, or, possibly" — introducing a notion of 51 per cent
probability — "if the balance weighed the other way." ^
1 Contrary expressions had "simply shocked" Senator Overman

of North Carolina. The view had been "almost universally conceded
until these later days," he said, "that when one held any doubt
about the constitutionality of a measure all doubt should be
solved in favor of the Constitution." CR 12196. See also Sen.
Bryan (D, Fla.), CR 12204.
2 The words quoted are Representative Green’s (R, la.), CR 2032.
3 See the remarks of Representatives Towner (R, la.), Denison
(R, 111.), and Green, CR 2009, 2019, 2032.
12055,
4 CR/12219, 12090, 12214. See also the remarks of Representatives
Towner (R, la.), Denison (R, 111.), and Senator Colt (R, R.I.),
CR 2009, 2019, 122S6.
The lack of precision in such a test was well illustrated
three days later by another exchange between Kenyon and Hardwick.
"I cannot accept the theory advanced here," said Kenyon, "that if
we have any doubt about it we should vote against the bill." But
"Judge Cooley's rule," said Hardwick, offering his own paraphrase,

was that legislators should "resolve all doubts against the consti
tutionality . . . if there were serious doubts in their minds."

Did not Kenyon agree with this "as a general proposition?"
Mr. Kenyon, No . . . because it is saved, to my mind,

by the question of the serious doubt. Just how serious
that doubt must be is a question. Few bills are passed
involving constitutional questions absolutely free from
doubt.
Mr. Hardwick. And yet I understood the Senator to say

just now that he had serious doubts about the constitu
tionality of this bill.
Mr. Kenyon. I have some doubts about it.

Mr. Hardwick. Vi/ell, if they are serious, then the
Senator is bound to vote against it.
Mr. Kenyon. No, they are not serious enough to cause
me to vote against it. I said grave doubt. If that
argument should be applied, we never should have had . . .
the lottery case. Each Senator must decide for himself
as to the doubtpquestions (sicl warranting him in voting
against a bill.
Kenyon, it seems, had in mind doubt about the Court's inter
pretation of the Constitution; Hardwick, doubt about one's own

interpretation. Not until the end of that day's debate was there
a meeting of minds on the point when, in the course of remarks by
Brandegee, Cumminsasked for some definition. "I have heard the
expression used here a good many times," he said, "that a man has
25 per cent conviction, or 50 per cent conviction, or that a law
1 CR 12214. 2 Loc. cit.
/3*
is 75 per cent good.*1 This, he thought, referred to doubt as to
how the Court would act; whereas,

I know how I would decide if I were a judge. . • •
I know certainly and absolutely how I would decide
it; but when I am asked, 'What will the Supreme Court
decide . . . ?' the doubt arises. I do not know. I
can only conjecture.!
Brandegee replied that he had been talking about each Senator's
"construction of the Constitution." Earlier he had expressed
doubt, but now he agreed with Cummins that he too had no doubt as
g
to how he would decide if he were a judge.
This resolution of the problem was an apparently simple one —
that each Congressman resolve the constitutional problem as he

would if he were a Supreme Court judge. Yet the problem of reach
ing a personal decision about constitutionality, although perhaps
easier than conjecturing about the Court, was not easy. There were
"new points" with which the courts would have to "wrestle," said
one member, who offered no guidance on the matter.^ Some members
found the task technical; some others were on the borderline. For
them, how were constitutional doubts to be resolved?
Might policy considerations be weighed in the balance? While

Congressmen were acting in the guise of pseudo Supreme Court judges,
presumably policy was not relevant. Yet policy was so pervasive a
concern of Congress that its influence in the resolution of consti-
1 CR 12228. In the House, Lenroot (R, Wis.) asked Sherley (D, Ky.),
who supported the bill and also said that doubts should be resolved
against constitutionality, whether he distinguished between the two
kinds of doubt. Sherley could see no distinction. CR 1592-1593.
2 CR 12228.
3 Rep. Platt (R, N.Y.), CR Appendix 265. "The pivotal question

involved is a nice one . . . ," said Representative Denison (R, 111.),
"I doubt not it will present perplexities to the courts." CR 2019.
/Jf-
tutional questions was obvious. Proponents of the bill were often
prepared to use its merits as grounds for resolving doubts. Re

presentative Howard of Georgia expressed a common attitude although
he arrived at it less readily than did others who were prepared
"to resolve all doubts in favor of the children."'*’ He had read,
he said, all the hearings and the arguments of Kitchin and Parkinson;
yet . . m y mind was still in doubt."

I wavered; I could not arrive at any conclusion
definitely . . . . So I decided that I would give
the benefit of the doubt as to the constitutionality
of the measure to the innocent childhood of my State,
and I am going to do it.2
To say that the benefit of doubt should be given to the
children was clear: it meant a vote for the bill and action by
Congress. When, however, one said that doubts should be resolved
for the Constitution, there was ambiguity. Thus, Cummins, who
found Brandegee "ordinarily . . • very clear", said he did not
understand Brandegee's statement that a man should "give the Con
stitution of his country the benefit of the doubt." "I give the
Constitution the benefit of the doubt," said Cummins in speaking
1 Rep. Gray (D, Ind.), CR Appendix 257.

^ CR 1600. Reavis (R, Neb.) and Barkley (D, Ky.) commended
Howard on his solution to his problem. CR 2010, 2033. See also
the remarks of Senators Vardaman (D, Miss.), CR 12221; Colt (R,
R.I.), CR 12286; Borah (R, Idaho), CR 12090; and Representatives
Denison’TR, 111.), CR 2019; Scott (R, Pa.), CR Appendix 260;
Garland (R, Pa.) . . if we are going to err, for God's sake,
let us err on the side of humanity."), CR 2032; Barnhart (D, Ind.),
CR 2034; Green (R, la.), CR 2032. -
". . . m y conscience," said Senator Tillman, "will not permit

me" to give the children the benefit of the doubt ". . . as much
as-I would like to. It is not a matter of expediency or wisdom
or unwisdom, but constitutional law is involved." CR 12295.
of the bill, "when I decide that it is constitutional."1 Clearly,
these differences depend on whether one thought of the Constitu
tion as an instrument of negation or of action; or, as Brandegee
said to Cummins, "It depends perhaps on how badly the Senator wants
2
to get the legislation through."
There was another ground for resolving doubts; they could be
passed on to the Supreme Court for final determination. If the

Court’s Interpretation of the Constitution was final — a premise
that was practically unchallenged -- Congress was not responsible
for a definitive interpretation but could rely upon confirmation

or correction by the Court. In varying degrees, such reliancewas
evident on all sides, perhaps most extremely in the case of Senator

Works ("I want to go home," to California, he said on August 7,
"where I can be comfortable") who thought the bill unconstitutional
but voted for it for "a very peculiar reason":

I believe myself that if this bill is enacted it will
be unconstitutional, but I am going to vote for it for
what may seem to be a very peculiar reason. I think
it will furnish the best opportunity the Supreme Court
of the United States has ever had to determine this
question definitely and for all time; and the question
is not going to be settled until it is finally settled
in that way. So we may just as well give the Supreme
Court the opportunity to determine it now as at any
later time.3
Work's reason for voting Yea was "peculiar" only because he

himself was certain that the bill was 'unconstitutional. Others
also looked to the Court for clarification, but they were them
selves uncertain or saw that experts disagreed or were simply

anxious not to be delayed by constitutional argument. " . . . while
I still have some doubts upon this question," said a Republican
CR 12828. 2 Xjqc . cit.

3 CR 12212.
member of the House, "I hope that this bill will become a law
and that its validity will be tested. " . . . with the conflict
of opinion from many high authorities," said a California Pro
gressive of the constitutional question, "there is only one way

in which it can be definitely settled at this time, and that is
p
to pass it up to the court of last resort." A similar statement
from another member approximated the position of Senator Works:

whenever "great legal minds are divided", one should pass the
question on to the Court even if in his own mind he thinks the
bill unconstitutional.^ The propriety of this course of action
seemed particularly obvious to Senator Gallinger, the Republican

floor leader. In response to goading from Hardwick about vacilla
tion, Gallinger, who was a physician in private life, styled him

self an unpresumptious layman and explained that some of the same
"prominent lawyers" of the Senate who had advised him against
Beveridge's bill had, like the President himself, changed their
minds; furthermore, he had "no hesitancy" in voting Yea since he
assumed that the Supreme Court would pass upon the new bill.4
If there was hesitancy about voting for the bill because it
might be unconstitutional, that hesitancy could be credited perhaps
to conscience but hardly to the Court. The bill's proponents, who

seemed quite confident of the Court's support, took advantage of
Denison (R, 111.), CR 2020.
2 Nolan (Prog., Cal.), CR Appendix £57-258. See also Ayres

(D, Kans.), CR Appendix £46.
3 Scott (R, Pa.). But, he added, if one was certain that the
courts would not uphold the bill (Senator Works did "believe" they
would not), his duty clearly was to vote against it.- CR Appendix
260.
4 CR 3054, 11371, 12300.
the Court's existence to argue for an end to hesitation. One of
the most impatient speakers in the House, in attacking those who
hid behind the fear that the bill was -unconstitutional, remarked
in passing, "Possibly it may be; but in that event there is always
a court of last resort, and they have their recourse t h e r e , T h e
most interesting expression of the attitude that Congress need not
hesitate for fear of the Court came from Kenyon, who managed to
give a positive twist to the notion of restraint, "Congress ought

to hesitate," he said, ", • . before denying the right to have the
~ 2
question determined by the Supreme Court."
^ Barnhart (D, Ind.), CR 2034,

2 CR 305E, For a similar statement by Senator Clapp (R, Minn.),
see Cl 12074.
Did the prospect of -unfavorable judicial review account for
opposition votes? As already noted, the opponents expressed
little confidence that review would be unfavorable. See above
pp./cV-ASThey emphasized, instead, the restraint of individual con
science, "Does the legislator owe no duty to the Constitution
which he is bound to respect," asked Watson in the House, "and can
he cast lightly upon the Supreme Court the sole responsibility of
determining his own obligation to the supreme law of the land?"
CR 1587, An opponent like Hardwick, however, who proclaimed that
the Court would be on his side, could add that he welcomed action
by the Court, " . . . the sooner we get this delectable law . . .
to the Supreme Court," he said, in shielding himself against any
charge of delaying tactics, " . . . the better pleased I will be."
CR 12307. But Hardwick's expectation certainly did not account -
for his opposition.
E. Congress — obligation and discretion
1. Oil power
What obligations did Congress accept in interpreting the

Constitution? It has been noted that Congress had various "tools"
— mainly the decisions of the Supreme Court — which could be
used to substantiate a constitutional position. However, whether
Congress felt obliged to accept these tools as decisive is another
matter. The question at this point is not what justification some

Congressmen found in the Lottery Case, for example, but what weight
the Lottery Case was supposed to have on Congressmen generally.
No member felt any necessity during the debates to deny that
the Supreme Court had the duty "to give the last and final inter
pretation to our Constitution." Differences in interpreting the

Court's decisions came within a framework of general agreement.
That agreement and the range of discretion are well illustrated
in the following remarks. In reply to Senator Borah's suggestion
that one's "own individual doubts" should not standin the way if
there were adequate precedents of the Supreme Courtto sustain a
desirable bill, Hardwick said:

it is not right, it is not just, it is not honest,
to substitute for my judgment as a Senator from Georgia
. . • the judgment of any other man on this earth. . . .
Every legislator is just as much the guardian,the
conservator, the preserver of the Constitution of his
country, which he has sworn to support, as any judge
can possibly be. Every legislator must act independently
on his own honest judgment . . . .
1 Webb (D, N.C.), CR 1573.
Mr. Borah. Mr. President, I accept the proposition
. . . that when the Constitution of the United States
is construed by the Supreme Court of the United States,
that is my guide, whether prior to the decision it
would have been my judgment or not.
Mr. Hardwick. That is true. I am going to agree. . •
that far, when it is plainly, clearly riled, and there
is no escape from the ruling. But in the region of
doubt, where it is uncertain how far the tendency has
proceeded, where it is uncertain whether the particular
question . . . has been decided or not, there can be no
such doctrine soundly applied.^
Thus, it seemed that Hardwick would follow any unequivocal
ruling of the Court. But later, upon cross-examination, Hardwick
somewhat changed his meaning when he explained the conditions of
escape. " . . . each legislator is bound to apply his own judgment
. . . provided his own judgment is so profound, so fixed, that it
does not yield to the persuasive influence of the logic and reason
ing of the Court's d e c i s i o n . I n opening the door to Congres
sional rejection of a Court decision, Hardwick was not typical.

But, as noted earlier, although he excluded the Lottery Case from
the category of "sound law", he was typical in following the law-
yer-like course of distinguishing cases.3
There was, then, no denial that Congress was obliged to act
within the framework of past decisions. Nor was there any clear
indication among either the supporters or opponents who took part

in the debate that the present issue was so crucial that an un
desirable opinion by the Court would not be accepted in the future.^

What if the Court upheld the law?
Mr. Borah. Does the Senator think that the principle

upon which the white-slave case was decided is sound?
1 CR 18073-12074. 2 CR 12076.
3 CR 12075-12077.
4 See, however, Senator Lane, above pp.
Mr, Brandegee. Of course, I can not say it is unsound,
because it is the law and has been sustained by the
Supreme Court,
Mr, Borah, Then the Senator would be perfectly satisfied
with this bill if the Supreme Court would sustain it?
Mr. Brandegee. I would not be satisfied with it, but I
would not say that it was unconstitutional if the Supreme
Court said that it was constitutional ,1
What if the Court did not uphold the law? "If it should
transpire that we are in error," Borah had said earlier, "or if
the Court should modify its views as we construe them, our course
in the future will be clear and we will at once set about to deal
with the whole subject matter in accordance with the decision."^
This was one’s duty, Brandegee and Cummins agreed, even though
one thought that the Court "really erred." There was almost
complete silence from others who, if they had spoken, might have
declared that an adverse decision should not be accepted or that
somehow Congress would reach its objective in spite of the Court,

In each house, it was noted at least once that the bill could
have been based upon the taxing power.^ But these comments were
1 CR 12091.
2 CR 12090. Passing the constitutional question on to the Court,
according to Representative Nolan (R, Cal.), was intended not only
to settle the question but also "so that we may be guided in the
future in our action on similar measures." CR Appendix 257-258.
3 CR 12229.
^ Senator Hughes (D, N.J.), argued that Congress could use the
commerce clause to reach an objective which it could reach, anyway,
by the taxing power, CR 3046. Decisions upholding the exercise
of the taxing power were frequently cited in rebuttal to the ar
gument that Congress could not do indirectly what it could not do
directly. See also the remarks of London, CR 1592.
/*/
not addressed to the problem of alternative action in the future.
Only one member, a Democratic senator from Nebraska, clearly in
dicated such a course. If the Court held the law void, he said,
"I think it is a fair guess that the people will amend the Con
stitution."^
That the Court's word was final was stated from time to time
as an axiom and, as many of the preceding pages suggest, was com

monly assumed. For example, it was implied in the inclination of
many members to pass doubts on to the Court. Opposition to this
inclination did not necessarily detract from the importance of
the Court. Opponents who emphasized the importance of Congress
as "the first judge"2 claimed, in effect, that this emphasis pro
tected the power of the Court whereas leaving doubtful questions
to the Court endangered it. If the burden of constitutional judg
ment were thrown upon it, said James Byrnes of South Carolina,
"the public • . « will come to regard the Supreme Court as an ob-
struction to all real progress and an enemy to the people." "We
all know," said Brandegee

what effect it has when a high court sets aside an
act of Congress or an act of a State legislature the
passage of which benevolent people have been able to
procure. All the journals of the country, the magazines,
and the 'uplifters1, a great many of whom deal in
language and not in brains, who know nothing about the
law, but are very versatile with epithets, denounce the
Supreme Court and say it is time to haul it off the
bench and have referendums and recalls and all that
sort of thing.4
Hitchcock, CR 12295. 2 See House MinorityReport. 4.

3 CR 1576. Byrnes was criticizing Congressmen who voted for a
bill although they had decided it was unconstitutional — but in
the case of the child-labor bill, only Senator Works was a clear
example of such a member.
4 CR 12093.
Thus, raising the constitutional issue was a service, said Brandegee,
"a little moral support11 for the Court in case the Court ruled
against the bill,1
One of the senators who shared the fear of Brandegee and
Byrnes that the Court's prestige was in danger stated that “there
are men who say they do not believe the Supreme Court has the right
to pass upon the constitutionality of an act."2 Members of Congress
who shared this belief felt no necessity to express it during the
debates. Although there was disagreement in the Senate as to the
historical grounds for that belief, there was agreement on the con
temporary power of the Court, A spirited discussion of the histo
rical justification for judicial review began when Vardaman of

Mississippi, who voted for the bill, suggested that Hardwick might
strengthen his argument with the fact that in 1787 many lawyers
believed that Congress should be "the court of last resort" in

construing the Constitution.^ Hardwick and also Clapp of Minnesota
not only agreed but offered other historical facts to prove that
"the framers of the Constitution did not at all intend that the
Supreme Court should declare acts of Congress unconstitutional."^
A full-scale debate on the matter with Borah began and was ended
only when Hardwick stated that he would be glad to engage Borah
at some other time "in a controversy . . . now finally settled,"

The assumption of power by the Court, he said, was "no longer a
1 CR 12823-12824.
2 Bryan (D, Fla.), CR 12204. See also Thomas (D, Col.), CR 12138.
3 CR 12074.
A Loc. cit. The quoted words are Hardwick's.
matter of controversy among good lawyers or among legislators.
So firmly was this conclusion generally accepted that for Congress
to pass judgment on a disputed constitutional question was, one
Q
member could say, "to usurp the function of the judicial branch."
The historical debate was not resumed although on a "sultry"
evening four days later Moses Clapp, the ranking Republican on
the Interstate Commerce Committee, found time to elaborate his
beliefs and to explain their relevance for one who supported judi-
cial review and a nationalistic interpretation of the Constitution.
Although the Fathers had not intended to grant the Court power to
declare an act void, he said,
There . . . never can be . . . such a thing as three
coordinate human agencies when the basis of the association
is power and authority. Somewhere there must be a power
to decide . . . limitations . . . . That power has to be,
of course, a separate authority, or one of three branches
must arrogate to itself that function. The Supreme Court
wisely took the latter course, and » . . down to this hour
there never has been seriously questioned the right and
power and duty of the judiciary to set aside an act of
the legislature . . . .4
"To their day and generation," said Clapp of the Fathers, "the
bulwark of . . . liberty . . . rested in the legislature." However,
the Court's arrogation of power was considered by Clapp to be wise
Loc. cit. " . . . there is no escape from the fact," said Clapp,
"that in the last analysis what five men, a majority of the Supreme
Court, there say is the constitutional law of this land until five
men of the same tribunal reverse the decision and the ruling." CR
12298-12299.
2 Scott (R, Pa.), CR Appendix 260.
3 The historical problem was discussed briefly a short while later
after Smith of South Carolina had read into the Record an extract
from No. 78 of The Federalist. CR 12301-12302.
4 CR 12297.
not, for the most part, because he thought the Court was a bulwark
of liberty but because the Court and the commerce clause constituted
"two great instrumentalities" for "molding, modifying, and develop
ing this Constitution to meet the growing wants and needs of a
growing people by the judicial construction of the Constitution."1
Like Clapp, others also assumed, without explicitly denying credit
to Congress, that in each instance "the marked forward step" was
taken by the Court.2 Here too, in this interpretation of constitu
tional development, was another indication of the pre-eminence
accorded to the Court.
2. On policy
In addition to general agreement that on matters of constitu
tionality Congress was only the first judge, there was general
agreement also that on policy Congress was the first and last judge.
But to circumscribe the province in which Congress was sovereign
1 CR 12298-12299. As industries developed and life became more

complex, Clapp said, the Court extended the commerce power "into
realms undreamed of." At the same time, the Court through inter
pretation of the commerce clause served to check legislative con
struction of the Constitution.
£ It was thus that Representative Sherley (D, Ky.) described the

development by which regulation came to include prohibition. In
cidentally, since Sherley believed that each member was obliged to
resolve constitutional doubts against constitutionality, the steps
allowed to Congress would seem to be short and to limit the oppor
tunities of the Court to take a "marked forward step." CR 1592-1593.
See also Parkinson, House Hearings, 177; Denison, CR 2020.
The Supreme Court, said Cooper (R, Ohio), who considered himself
unqualified to pass upon constitutionality since he was not a lawyer,
required "not men who are mere worshippers of the dusty precedents
of the books but men who combine with great knowledge of the law the
forethought, the soul, the imagination of the statesman." CR 2033.
would be as difficult as drawing a line between questions of power
and policy. If it is true that questions of power included, at
times, considerations of grand policy, it would follow that Con
gressional acquiescence in the finality of the Court's decisions
was an acquiescence in the rulings of a body whose province over
lapped that of Congress.

The overlapping — and also some uncertainty and confusion —
is well illustrated by Congressional discussion of the limitations

imposed upon Congress by the fifth amendment. The problem arose
during the House hearings when Professor Parkinson was asked: "Upon
review of this matter by the Supreme Court, to what extent would it
inquire into the wisdom of the judgment of Congress, or would it
■undertake to go beyond the judgment of Congress at all • • •

Parkinson answered, "It would not undertake to go beyond the judg
ment of Congress unless the judgment of Congress was absolutely

P
arbitrary." ' How was the Court to test arbitrariness? Parkinson's
explanation, which was elicited by many questions during the House
and Senate hearings, was also the explanation of the leading sup
porters of the bill. "The test," Parkinson said, "is reasonableness
and nothing more." It was "a vague and Indefinite test." Congress'
only guide was the past decisions of the Court.3 The Court, in
turn, in determining reasonableness was guided by the Congressional
judgment and also, since that judgment was not reasonable by

definition, by "the experience of the past", in this case by the
Sumners (D, Tex.), House Hearings, 189.
2 Loc. cit. 3 Senate Hearings, 1££-1£3.
fact of much similar state legislation.1 If Congressional stand
ards were set higher than State standards, the Court would accept
Congress' judgment if there was "sufficient justification.1,2
However, the Court's task in deciding on reasonableness was not,
it seemed, one of expertise but of insight. In answer to a hypo

thetical question from Senator Pomerene, Parkinson said:
Senator, . . . . That is for the Congress to say. If

conditions at the time that it passes such legislation
justify it, if in other words — here is the general
test, and you can not make it more specific — if you
should pass that regulation now I think the average
man would be shocked by it, and if the average man
would be shocked by it the chances are that the Supreme
Court of the United States would be shocked by it . . . .
[whereas] this legislation will not shock the average man
o • • •3
That is, the Court judged policy. Without reference to the
average man, the point had been made before the House Committee
when Parkinson assented to the following suggestion of the Chair
man: "Doctor," Lewis asked, "is it not finally a legislative test
and a sociological test, rather than a juridical test?"4
The leading supporters of the bill accepted judicial supremacy

in the administration of the "legislative test" which was necessary
to determine reasonableness. As a result, hypothetical questions
about Congress' power to prohibit commerce in the future proved
difficult for Kenyon, Borah, Robinson, Sutherland, and others.
Such questions had been easily dismissed by Beveridge in 1907
because, in addition to practically ignoring the fifth amendment,
1 House Hearings. 192-193, also 191, 197.
2 Ibid., 193. 3 Senate Hearings. 129-130.
4 House Hearings, 189.
/*7
he had assumed a sharp distinction between power and policy and
had considered all applications of the commerce power to be a
matter of discretion subject only to political restraints,^ In

2
1916, however, Beveridge's successor, William Kenyon, found a
difficult constitutional question in the "distinction" between an

%
eight-hour law for women and one for men. Public "sentiment"
and other facts "bearing upon reasonableness", said Kenyon, would
have to be inquired into finally by the Court.4 A similar conclu
sion was reached by Robinson, whose strong assertion that Congress
could legislate through the commerce power "in the interest of the
health, safety, and morals of the people" was not followed by an
equally strong assertion that the exercise of this power was a

matter of Congressional discretion, In the following exchange,
Hardwick and not Robinson had the last word:
See above pp.
2 See above p. 1 6 and, for a tribute to Beveridge, CR 12213.

Kenyon, however, did not agree with Beveridge that Congress' power
of prohibition in interstate commerce was complete. CR 3048.
'Z
CR 3054. A national eight-hour law for women would be reason
able, Kenyon thought, because similar State legislation had been
upheld; but he could not say how soon a general eight-hour law
would be considered reasonable. CR 12218.
Parkinson expressed a belief before the Senate Committee that

the Court would uphold an eight-hour law for women, patterned after
the child-labor bill. Senate Hearings., 130. But to similar ques
tions about Congress' power, Paikinson refused to answer. See
House Hearings., 181, 191-192.
4 The Court, said Kenyon, would have to "take up the general sit
uation of the country as bearing upon reasonableness, what the
States have done about it, what the sentiment is in the country,
and what effect that has upon the country . . . ." CR 3054. For
remarks by Overman, CR 3055. The consequence of relying on public
sentiment, said Hardwick, would be a Constitution of "shifting
sand. It will depend on election returns." CR 12215,
/
Mr. Hardwick. Congress is the judge? I am going to

see where your doctrine leads . . . . Let us see who
is the judge.
Mr. Robinson. It is a question for final determination
by the court.
Mr. Hardwick. But for Congress primarily.
Mr. Robinson. Congress determines first.
Mr. Hardwick. If the Congress . . . determined on high
moral grounds . . . that no article produced by labor
employed more than eight hours per day should be admitted
to interstate commerce, would that not be within its
power if the doctrine advanced by the Senator is sound?
Mr. Robinson. I express no opinion on that subject.
Mr. Hardwick. I do not wonder that you do not.
Mr. Robinson. I do not think the cases are analagous at
all. I say we recognize the sentiment of the people of
the United States that the abuses . . . exist in child
labor . . . and in view of that fact Congress is warranted
in using its power to regulate commerce to suppress the
evil.
Mr. Hardwick, Let us see . . . . many people believe it
is absolutely against public morals, If not criminal, to
make honest Americans, home-loving, vote-casting men,
work more than eight hours a day? The time may come, if
it has not already arrived, when the Senator from Arkansas,
following his proposition of going according to the public
sentiment on a question of constitutional power . . . will
be bound by the force of irresistible and unanswerable
logic [to agree to an eight-hour law] . . . . When the
Senator does that I should like to see him get his cotton
shipped out of Arkansas."!
Thus, there is evidence that Congress accepted judicial review
also in regard to some matters of policy. It is true, however,
that neither side found any necessity in the child-labor debate
to attack the Court. Therefore, in anticipation of changed cir
cumstances, it is of interest to note what was said directly in
praise of Congress and to ask whether in that praise there was a
future challenge to the Court.
1 CR 12064-12065. See also the remarks of Denison, CR 2019-2020-

Sutherland, CR 3052-3053; Borah, CE 12080-12092 passi^T
During the shorter speeches in the House, there was little
generalizing about Congress as an institution. In the Senate,
aside from the expostulations of Senator Lane, there was not
displayed so great a confidence in legislative majorities that
one might expect at some time a reaction against the power of the
Court, In effect, Congress identified itself more frequently with
future Courts than with future Congresses. The present Congress,
however, was spoken of with respect, at least by members speaking
for the bill. It was with humility that Kenyon addressed "the
Senate, composed of many lawyers who know constitutional questions
better than 1."^ But it was only mildly and without emphasis that
he approved the argument that some of the suggestions as to future
action by Congress "could never arise. They could arise only if

Congress should become absolutely crazy." That, said Kenyon, was
2
"perhaps too violent an assumption."
Another argument against the danger of abuse of power by
Congress was duly noted and accepted by Borah: "Congress . . .

may exercise its judgment as to what is the public welfare , . .
as Marshall once said, there is really no limit under certain cir-

cumstances except a change of Representatives in Congress," But
"under certain circumstances" was a qualification by Borah which
had not been made by Beveridge when Beveridge had referred to
Marshall. When prodded with questions about future legislation,
1 CR 3045. 2 CR £048.
® CR 12098. Brandegee added, " . . . and a change of judges of
courts, because whether it will stand or not will depend upon the
courts" — a statement which was either a distortion of the point
or an implication that judges cooperated in abusing power.
Marshall's argument had been referred to earlier by Borah
without qualification. CR 12083. But Borah repeatedly made clear
that Congress' discretion extended only "to a certain extent."
OR l£09^#
Borah's response — "The Senator says 'and so on, and so on,' but
there is a limit to these things" — was supported by a reference
not to political restraints but to the Supreme Court.'1'
This combination of respect for Congress and reliance on the
Court, suggestive of split compartments, was most sharply dis
played by the dignified Republican senator from Rhode Island and
former judge, LeBaron Colt,s whose high tribute to the Senate's
sense of responsibility has already been quoted in part. His im
pressive statement, which was made shortly after Cummins had ex
pressed his own "great faith in the Congress of the United States,
is as follows:
Some Senators seem to be worried about . . . encroachment
. . . upon the rights of the States. I do not think we
have any just grounds for such an apprehension. When I
look at the temper of the Senate, when I see Senators on
one side and the other debating for days in the most
able, painstaking, and. conscientious manner the constitu
tionality of this act, I realize that we need have no
fear of the safety of our Federal institutions. Vfny, the
whole organic law of Great Britain rests upon the moral
sentiment of Parliament. Parliament has the power to pass
any law, but the moral sense of Parliament governs, and
forbids it to pass any radical legislation. And so, Mr.
President, the safety of our Federal institutions . . .
rests in a large degree upon the public sentiment and
sound judgment of the Congress of the United States.4
But the words "in a large degree" indicated a qualified reliance.
The bill should be passed, Colt went on to say, "if it is not
manifestly unconstitutional,"
1 CR 12090.
^ See 4 Dictionary of American Biography 317-318.
3 CR 12279.
4 CR 12286. Parliament was offered by Brandegee and Tillman as
warning of what Congress might become. CR 12086-12087, 12294.
Iff! :
and then, if subsequently it should be shown upon

very careful examination, to be clearly in violation
of the Constitution of the United States, we have,
thank: God, under our form of Government, a tribunal
which will so declare it to be*
Again, a common assumption: final, interpretation of the
American Constitution required more expert deliberation than
Congress could provide. Hero and elsewhere, there was also
assumed a more important ground of necessity for judicial review,
the necessity for protection against legislative majorities. This
w a s implicit, in the references of the opposition to "the mere
dictum of the Congress", its "whims and . . , temporary desires",

g
the "mob spirit" of "an unrestrained acting majority." It was
1 C R 12286* Colt, did not clearly say that the American

Constitution was more surely safeguarded than the British, nor
did he explain why constitutional questions in the United States
were apparently more complex than in Britain — whether the
reason was a written constitution, federalism, or some special
legal quality about, the Constitution*
2 Works, OR 12086; Hardwick, CR 12067; Kitchin, Senate H e a r i n g s ,1110
Eyrnes, Britt, and Brandegee attacked the "reckless" passage

of hills and, in the present instance, affirmative votes by
Congressmen who had decided the child-labor bill was u n c o n s t i t u
tional. But, as noted, only Senator B'orks fitted clearly in the
latter category.
The horrible consequences of no judicial review w e r e detailed

in an article submitted by Overman, CR 8 9 2 9 - 8 9 3 0 0
Senator Tillman had no confidence in Congress, but he was

exceptional among the opposition in his complete lack of
confidence in the Court. "The Supreme Court alone . . . will
finally ’press us into one consolidated mass, *" he said, quoting
Jefferson, CR 12294-12295.
In the Congressional Record for the second day of t h e Senate

debates, there m a y be found as notable a collection of cliches
concerning the Court as this writer has been able to find anywhere.
On that day, Representative T om Heflin of Alabama made a one-
hour speech attacking the Republican invasion of the Court in
search of a presidential candidate. CR 12119-12123*
implicit also in much that was said by supporters of the bill and
occasionally was expressed by them as bluntly as it was by the
opposition.'*'
Earlier, the observation was made that if the Court were to
rule adversely on the child-labor act, the decision would probably
not be unpopular for members who were apathetic about the act; for
members who had been seriously apprehensive about the precedent the
act would set, the decision would hardly be unwelcome. In the light
of various attitudes toward the constitutional problem, other mem

bers could be expected to greet an unfavorable decision with a
mixture of disbelief, dismay, some anger, and much resignation.
Stronger reactions were not clearly forecast during the history of
the bill. Their emergence awaited the appearance of Hammer versus

Dagenhart.
For example, a strong supporter of the bill found occasion

to say, *'. . . when the people fear, think, or believe . . .
that the police power is encroaching upon his personal rights
or liberty , . . the only way to stop it and to draw a ring
around it is through the constituted authority, namely the Supreme
Court.11 Sen. Hustings (D, Wis.), CR 12209.
R eproduced with permission o f the copyright owner. Further reproduction prohibited without permission.
Hammer v. Dagenhart and the Second Child-Labor La.w
I. After Hammer v. Dagerihart — What?
A. The opinion of the Court
The news of Hammer versus Dagenhart, in which five members
of the Supreme Court on June 3, 1918 held the Child-Labor Act
void, was reported on page fourteen of the New York Times, buried
beneath the dramatic news of the war.-1- However slight the impact
on the general public may have been, among interested parties
what the Times described as "utmost surprise" could hardly have
been overstated. In regard to the proposition that the power to
regulate interstate commerce included the power to prohibit the

movement of ordinary commodities, the Court had blandly stated,
"The cases demonstrate the contrary." The Child-Labor Act, said

Justice Day, was unlike earlier acts because it was directed at
goods which were "themselves harmless" and was aimed at harm which
preceded transportation. "All will admit," said Day, the necessity
of regulating child labor. As to how this might be done on a

national scale, he gave no clue; but he did observe, somewhat gra
tuitously, that the commerce power gave Congress no authority to
equalize conditions among the States. The regulation of the hours
of labor of children was "a purely local matter to which the federal
authority does not extend." Congress could exercise only the powers
1 247 U. S. 251.
which were "expressly” delegated to it and could not invade the
area reserved to the States by the Tenth Amendment.

As notable as the majority's novel and extreme opinion was
the dissent written by Holmes and concurred in by McKenna, Brandeis
and Clarke — a dissent which was to be described by Justice Stone
twenty-three years later as "powerful and now classic."^ There
could be no question, said Holmes, of the inclusion within the
power to regulate of the power to prohibit. As for the limitation

of that power by the fact of possible interference with the States,
"I should have thought," he said, "that that matter had been dis
posed of so fully as to leave no room for doubt." Regardless of
indirect effects upon activities within the States, Congress was
empowered to express the public policy to which the products of a

state were subject when they went beyond State boundaries.
1 U. S. v. Darby, 312 U. S. 100 at 115.
B. Reactions on the floor of Congress
Hammer versus Dagenhart immediately provoked the ugly words

which Senator Brandegee in 1916 had prophesied would come if a
popular but unconstitutional statute was passed on to the Court.'1'
On the following day, there were reports of bitter words from old
enemies -- talk of increased "contempt*' for the Court and "greater
impetus" to the movement for limiting the Court's power and for
p
making easier the constitutional amendment procedure.'1' These were
the extreme reactions to the Court's decision and the first to be
reflected on the floor of Congress. Three days after the Dagerihart
case, Robert Owen of Oklahoma, the bill's sponsor in the Senate,
proposed that the child-labor law be re-enacted with the addition
of the following section:
The constitutionality of this act having been declared

by the competent authority of Congress and of the
President of the United States at the time of its
passage shall only be questioned thereafter by the
Congress itself and the people of the United States
in their sovereign capacity as voters. Any executive
or judicial officer who in his official capacity denies
the constitutionality of this act shall ipso facto
vacate his office. No judge of an inferior Federal
court shall permit the question of the constitutionality
of this act to be raised in the court over which he
presides, and the United States Supreme Court shall
have no appellate power to pass upon such question.6
Owen was hereby making a practical application of a principle

which he had often expressed. On January 8, 1917, about eight
See above p. / y / .
2 See The New York Tribune, June 4, 1918, p. 16.
3 Section 7 of S. 4671, CR 65:1: 7432.
with permission o f the copyright owner. Further reproduction prohibited without permission
months before the child-labor act had been declared void by a
federal district judge, Owen had introduced a resolution declaring
that any federal judge who held an act of Congress unconstitutional
was "guilty of judicial usurpation and guilty of violating the

constitutional requirement of 'good behavior' . . • and shall be
held by such decision to have vacated his office."1 The resolution
had been dismissed as "ridiculous" and "grotesque" and lacking the

a
support of even a half dozen votes in the Senate. Owen himself
was far from being without influence. He was a leader in the
Senate and prominent in the movement for increasing popular con
trol over government.^ His conclusion about the Supreme Court,
however, did place him on the extreme fringe of that movement.
1 S. J. Res. 193, CR 64:2: 989. The text appears in CR 64:2: 1068.

The "whereas" clauses of Owen's lengthy resolution were a capsule
summary of his argument against the Court. The resolution with
minor changes re-appeared as S. J. Res. 195. CR 64:2: 1164, 1255.
On January 23, 1917, in an address before the Oklahoma legis

lature, a local judge spoke in opposition to critics of the Court.
The address, which did not mention Owen, was described by Sutherland
(R, Utah) as a reply to S. J. Res. 195. CR 64:2; 2666. It was
printed as Senate Document No. 708. 64th Cong., 2nd Sess., "Power
of the Supreme Court to Declare Acts of Congress Unconstitutional."
On January 27, 1917, Owen argued his case before 1,250 persons
in the Oklahoma City auditorium. See Senate Document No. 737.
"Withdrawing Power from Federal Courts to Declare Acts of Congress
Void."
Owen was also interested in amending the amendment procedure.
In four successive Congresses, he proposed to 'establish'constitu
tional majority rule." S. J. Resolutions 15, 20, 9, 8: CR 62:1:
3226, 63:1: 195, 64:1j 91, 65:1: 197.
2 Sherman (R, 111.) and Smith (R, Mich.). See CR 64:2; 1253-1256.
® Owen was chairman of the Committee on Banking and Currency and

President of the National Popular Government League. For his
"political creed", see CR 66:2: Appendix 8957, April 6, 1920, which
was submitted in-behalf of Owen as a candidate for the Presidency.
The extent of Owen's radicalism is indicated by the following:
Hammer versus Dagenhart was cause for reviewing the arguments
at length. Once again, said Owen, the Court had set aside "public
policy."
One man has nullified the opinion, the matured public

opinion of this country, as expressed by Congress, and
has overruled both Houses of Congress and the President
and has established as a judicial decree that every
Member of the House voting for the act and the President
of the United States violated the Constitution of the
United States, which they severally lifted up their
hands before Almighty God ana swore to observe.
Judges were subject to the normal biases of human beings, said
Owen; they were no more learned than Congress in construing the

g
Constitution and were not adequately responsible to the people.
The judiciary was "really a branch of the executive to interpret

what the law means.^ Owen ignored the familiar distinction
between power and policy. "A wise judge," he said, should simply
follow a "conclusive presumption" that an act was constitutional.4
He was not challenging the integrity or patriotism of "this great
"The right to acquire and hold private property is the great

reward which society wisely provides as the best incentive . . . .
The denial of this right . . . . would mean bolshevism and chaos.
But the right of property is subordinate to the right to life and
liberty. . . . " Loc. Cit.
1 CR 65:2; 7432. 2 CR 65:2; 7433.
3 CR 65:2: 7435. That the Supreme Court was a coordinate branch

of the Government was "one of the unsound, mischievous teachings
of lawyers." CR 65:2:-7433. Nor did Owen subscribe to the theory
of checks. -National organs "ought to act along lines of perfect
harmony, not along lines of eonflict." CR 65:2: 7434.
4 CR 65:2; 7433.
and honorable court, which we all revere."1 The Court was merely
following in the footsteps of a usurper, John Marshall. "The
obvious remedy," said Owen, , . is to take from the court the
right to consider the question of constitutionality." In the
present case, Congress would simply exercise its power over the
Supreme Court's appellate jurisdiction by making an exception of
the child-labor act.

Owen had not taken part in the Senate debate on the child-
labor bill. Of the many who had spoken for the bill, no one now
arose to agree with Owen's solution for the problem presented by
Hammer versus Dagenhart although Senator Cummins stated that he de
plored the decision.^ Albert B. Fall, Republican Senator from New
Mexico, arose to say, " . . . the line of legislation which some
1 CR 65:2: 7433. " . . . every lawyer, almost without exception,

will loyally stand by the decisions of the Supreme Court of the
United States as the last word in human wisdom. It must be re
membered, however, that every lawyer is an inchoate judge and
instinctively approves added power to the courts . . . by whose
approval he lives and. thrives and has his being." CR 65:2: 7432.
2 CR 65:2: 7432, 7434. 3 CR 65:2: 7433.
4 Cummins asked whether Owen distinguished between the Court's

power over Congressional laws and its power over State laws. After
Owen had stated that he did and that he was discussing only the
former, Cummins asked, "Suppose Congress did pass a law declaring
slavery, subjecting the-people of this country to involuntary
servitude, does the Senator think that a law of that kind could
be enforced? Does not the Senator think it would be declared un
constitutional?" Owen replied: "I will answer the Senator. He
thinks the remedy would be in the Supreme Court. The remedy would
not be in a court. The remedy for an act of base treachery and
treason of that kind, if it were thinkable, would be first met by
the retirement of every man who dared to vote for such an act, by
the righteous indignation of the people of this country. That is
the answer to the Senator's question, and that tells where the
power lies. If Congress were to dare to pass an act of that kind,
it is a question whether its members would physically survive to
reach home, if they dare to go home." CR 65:2: 7434.
people are advocating is gradually and rapidly wiping out State
rights," "Now, what power would protect the State," he asked,
", , , if it were not for the Supreme Court of the United States,
just as it. did in the case a day or two ago?"'1' Owen replied in
generalities, apparently unaware of the fact that Fall had voted
2
for the passage of the child-labor hill. Two other senators who
responded to Owen had not been members of the Senate in 1916, They
ignored Hammer versus Dagenhart, came to the defense of the Court,
•2
and attacked "untried theories of political opportunists."
In the House, as in the Senate, there was only a ripple of

protest. On the day following Senator Owen's speech, Represent
ative Dillon, a Republican from South Dakota, introduced a bill
"to limit the power of Supreme Court judges to declare laws un
constitutional ."4 A few days later, Meyer London, the New York
Socialist, was allowed fourteen minutes to discuss the Dagenhart
c a s e .5 London described a "very interesting item" in the Official
Bulletin of that morning. " . . . the Department of Labor," he said,
1 CR 65:2: 7435.
2
Perhaps because of repetition, Owen seemed to be carried away
by his own argument, "The people," he said, "would never be hasty,
unjust, or tyrannical.- Only minorities are tyrannical." Loc. cit,
2 Kellogg (R, Minn.), CR 65:2: 7434. The other speaker was King
(D, Utah), Loc. cit.
4 H. R. 12415, CR 65:2: 7518.

^ June 12, 1918. For London's remarks and the discussion which
followed, see CR 65:2: 7692-7693.
"has been flooded with telegrams of inquiry from employers through
out the country whether they are now free to employ children • . .
and these requests • • . are usually accompanied by the statement,
•Wire reply collect.1"

London spoke with little preparation and without a solution.
Lawyers differed, he said, about the rightful power of the Supreme
Court.
But whatever the opinions of lawyers may be — and

lawyers will always differ, as it is their training
to split hairs, to differentiate, to find distinctions,
and to reason things out theoretically and abstractedly
and altogether out of relation to existing things and
to live more or less in the past — the predominance of
the lawyer in social and economic legislation is nothing
short of calamity . . . . One thing is certain, that if
this decision remains the law of the land it will be
impossible for the National Legislature, for Congress ,
to cure by legislation any of the social or industrial
evils which legislation in all civilized countries of
the world tries to meet.
Somihing had to he done, he said. It had been suggested that the

Court be deprived of certain appellate jurisdiction or that de
cisions be reached by referendum, or that a constitutional amend
ment be passed to restrain the Court. "Perhaps," London himself
suggested, there whould be "a select committee to study the entire
problem and present a remedy."
London's plea brought forth no sympathetic response. The
first reaction from the House was a question: "The gentleman has
read the case of Marbury v. Madison?" The speaker was Sherley,
the Kentucky Democrat who had testified in 1916 that after re
reading the Lottery Case he had been "forced to the conclusion"
that the child-labor bill was c o n s t i t u t i o n a l A second speaker,
^ See above p. //?,
with permission of the copyright o w n e r.T u rth e r reproduction prohibited without permission.
who also had voted for the bill, arose to add his defense of
the Court. The alternative before Congress, said Sanford, a
New York Republican, was " . . . Government by law, or else the
Supreme Court may be abolished and we would immediately proceed
to be Bolsheviki, and we would be the Bolsheviki."
C. In what direction should Congress go?
Was London's conclusion inescapable -- that if the Dagenhart

case stood, Congress could not reach an objective which it had
agreed was desirable? A part of the press agreed, in effect, with
London on the question of Congressional action but considered the
objective itself still attainable. Their conclusion, said The Child
Labor Bulletin, was: '"Now, let the states act!'"1 The New York
Times, for example, found a silver lining in Hammer versus Dagenhart:
g
"The decision opens the way rather than closes it." The way of
State action, however, in the eyes of those who had worked actively
for child-labor laws, was an alley which, though it could still be
explored, was for some States near a dead end; for others, it was
unfairly obstructed by free entry from other States. Only by a
national avenue of approach, it was believed, could minimum national
standards for all States be reached.
Agreement with London's conclusion was also implicit in the
Owen and Dillon bills, which proposed curbing the Court. There
1 The Child Labor Bulletin, Aug. 1918, Vol. 7, p. 85.

^ June 5, 1918, p. 10. The point of departure for the Times'
editorial was the comment of "contempt" for the Court, which was
quoted above p. / S S Successive editorial opinions by the Times on
the question of national action against child labor afford a striking
example of a complete turnabout in position when the Court- itself
appeared to be threatened (unless, indeed, what is evident is merely
a case of the editorials not knowing what the "Topics of the Times"
are doing). See New York Times, Aug. 10, 1916, p. 8; Sept. 3, 1917,
p. 6; June 5, 7, and 19, 1918, pp. 10, 12, and 10 respectively.
3 The failure, after the Dagenhart case, of a moderate bill in

Georgia was cited by the N.C.L.C. as further evidence to support
this conclusion. The Child Labor Bulletin, Aug. 1918, Vol. 7, pp.
85-86.
was a similar implication, with respect to Congress, in the tradi
tionally respectable conclusion that the Constitution should be
amended. Some ten years before the Beveridge bill of 1906, amend
ments had been proposed to empower Congress to regulate child labor.
One proposal had appeared as recently as July 8, 1914, after hear
ings had been completed on the first child-labor bill to pass the
House,'*" Its sponsor, Representative Rogers, a Massachusetts Re
publican, joined with the forces for the bill in 1916 although
even then he thought an amendment was "probably the better way . .
. providing it could be equally speedy,"2 The Dagenhart case,
though unhappily received, vindicated the amendment approach; and
in regenerating that effort, it was said that the decision might
prove to be "a blessing in d i s g u i s e , W i t h i n ten days, three
representatives, including Rogers, introduced the appropriate joint
resolutions.4
Among the most active proponents of national action against
child labor, there was momentary thought of an amendment. On the
1 H. J. Res. 298, CR 63:2: 11839.
2 Hearings . . . on H. R. 8234, 64th Cong,, 1st Sess., pp. 135-137.
^ Professor Frederick Green, quoted in "A Quest of Constitution

ality," by Raymond G. Fuller, in The Child Labor Bulletin, Nov. 1918,
Vol. 7, p. 207. Mr. Fuller and his associates, however, were "still
pinning their faith to what is actual constitutionality rather-than
to what ought to be constitutionality," Ibid., p. 208.
4 H. J. Res. 300, by Mason (R, 111.), June 11, 1918, CR 65:2: 7652;
H. J. Res. 302, by Rogers (R, Mass.) and H. J. Res. 304, by Farr
(R, Penn.), June 13, 1918, CR 65:2: 7776.
Before the session ended, two other and more inclusive amendments
were submitted in the House by Republicans from Massachusetts and
Pennsylvania — one to allow the regulation of hours and the other,
the regulation of wages and hours and also "the price of commodities.
H. J. Res. 361 by Dallinger, Dec. 5, 1918, CR 65:3: 169; H. J. Res.
315, by Watson, July 13, 1918, CR 65:2; 9 1 3 2 ,
day the Court spoke, Senator Kenyon said, "I do not for the moment
see any plan by which a Federal statute could be applied to this
problem, in view of the sweeping nature of today's decision.
But a meeting was scheduled; and, according to Kenyon and Represen
tative Keating, a campaign was to begin immediately for an amend
ment or for a new law — perhaps, said Keating, a law based upon
the taxing power.2 The National Child Labor Committee was "un
daunted" and ready to "reorganize , . . forces" and "keep up the
fight.The fight was not to be for an amendment, however. The
most active promoters of national legislation — the National Child
Labor Committee, the American Federation of Labor, Representative
Keating, and Senators Pomerene, Kenyon, and Lenroot — were not yet
resigned to the difficulties of the amendment procedure; and the
joint resolutions which were introduced were ignored. Nor was
there much disposition to challenge the power of the Court, Although
the decision was deeply regretted, no open criticism of judicial
power came from the National Child Labor Committee. The American
Federation of Labor convention, in session shortly after the deci
sion, endorsed "effective restrictions on the power of five men
to nullify . . . legislative enactments." However, such restrictions
1 New York Tribune, June 4, 1918, p. 16.
2 New York Times, June 4, 1918, p. 14.
3 Prof. S. M. Lindsay, New York Tribune, June 4, 1916, p. 16;

The Child Labor Bulletin, Nov. 1918, Vol. 7, p. £13, pp. 150-151.
were left for the Indefinite future.'1' What was urged for the
immediate future was the passage of some kind of national child-
lahor law.2
1 The convention on June 19, 1918, in adopting a committee report

on child labor, instructed the A. F. of L. Executive Council "to
make an effort to secure such restrictions." Report of the Proceed
ings of the Thirty-eighth Annual Convention-of the American Federa
tion of Labor, 1918, p, 317.
Another committee, which was not concerned with child labor,
considered a resolution demanding that federal judges be elected
for short terms and be subject to recall. The committee submitted
a substitute resolution, which was adopted, calling for study of
the growth of judicial power, publicity, and the preparation by
legal counsel of "an adequate measure" to prevent judicial invasion
of the legislature. Ibid., p. 325.
The A. F. of L, Executive Council did not appear to have any
doctrinaire remedy at hand. In regard to another unfavorable deci
sion by the Supreme Court on Labor, the Council in its report had
concluded: "The relief from such decisions . . . lies not only in
legislation but in educating public opinion and in changing the
personnel of the judiciary so as to secure judges who understand
economic problems and forces." Ibid., p. 92; see also p. £80.
"A representative of labor," according to Professor Farkinson,
in regard to a suggestion that the law be re-enacted with the ad
dition of a declaration that Congress did not intend to interfere
with local conditions, had suggested that re-enactment "would look
too much like a collateral attack on the Court's decision.1' The
Child Labor Bulletin, Aug. 1918, Vol. 7, p. 96.
p
Four resolutions on child labor, consistent only in their
general objectives, were introduced at the convention and adopted
as part of a committee report. One called for a bill, "so drawn
as to avoid the technicality recently raised", setting a standard
of forty-eight hours a week for children and also women "employed
on products which enter Interstate trade." The second resolution
called for a national law to abolish child labor in every State;
and the third, simply for "immediate Federal Legislation." The
fourth resolution asked for legislation to abolish child labor and
to "bring into actual existence . . . constitutional ideals" of
priority for human rights. It urged, also, that the General Direc
tor of the Railroads prohibit railroad transportation in the products
of child labor. The committee in charge of the resolutions added its
own "suggestion": "federal incorporation under provisions safe
guarding children, of all concerns engaged in production for inter
state commerce." Ibid., pp. 316-317.
/6*
On this necessity, there was general agreement. The times
seemed to be auspicious for national action. The war had developed
both "the humanitarian spirit” and "national-mindedness” , said The
Child Labor Bulletin.
Now is the time:
'Come, while the nation feels the lift

Of a great impulse shooting forwards 1
But the most encouraging circumstance was the fact of a powerful
dissent by four members of the Court. This gave rise to so strong
a hope for reversal that it was thought the Court might immediately
reconsider its decision and make a new lawr unnecessary. One week
after the decision, the Solicit or-General moved, for leave to apply
p
for a reargument; but later the motion was abandoned. It was too
much to hope, said Professor Parkinson, that counsel could succeed
in convincing the majority after the minority had failed. Hope of
a reversal was better postponed until the Court's membership was
changed or subsequent decisions weakened the Dagenhart case as a
precedent
1 Nov. 1918, Vol. 7, pp. 150-151.
2 Ibid., Aug. 1918, Vol. 7, p. 90. Dean Roscoe Pound had sug
gested re-enactment of the 1916 act with the addition of an intro
ductory declaration that the States had no power over child-labor
products from other States and a concluding declaration that Congress
did not intend to interfere with local conditions. Ibid., p. 96.
3 Ibid., p. 90. It was suggested by Professor Ernst Freund that,

pending reconsideration by the Court, the act should remain on the
statute books. Loc. cit. In Congress there was no move for repeal.
There was, on the other hand, an unsuccessful attempt to preserve
some of the enforcement machinery in the Department of Labor by
making the scheduled appropriation for the following fiscal year
available for purposes of investigation. See the amendment to the
sundry civil appropriation bill, introduced by Senator Pomerene CD,
Ohio), on June 19, 1918. CR 65:2; 7994.
Meanwhile, Hammer versus Dagenhart was accepted as marking
the frontier on merely one avenue of approach, the avenue of pro
hibition in interstate commerce. The destination itself — minimum
national standards of hours for child labor -- was not conceived
of as forbidden territory. Those who interpreted the Court's
decision in this manner were concerned mainly with reaching the
destination. They hesitated to attack the Court's power and thereby
"divert public interest."-*- Thus, they differed from Senator Owen
on strategy but it is doubtful that they differed significantly in
regard to "constitutional morality" if by that is meant faithful
acceptance of the spirit of the Court's decision. That spirit was
not to be accepted, nor was the majority of the Court to go un
challenged. By means of some national power, extraordinary and
temporary or ordinary and permanent, Congress was to be urged to
try again.
"One of the best friends of the original child labor law in

Congress," Parkinson wrote, "has refused to introduce a bill to
re-enact it in substantially-its original form on the ground that
this is not the time to divert public interest to . • . fundamental
constitutional questions." The Child. Labor Bulletin, Aug. 1918,
Vol. 7, p. 96,
D. What avenue of national action7
Although, hope that the Court might immediately reverse its
position was abandoned, there was still hope that in the near
future the commerce power might again be available for the setting
of national standards. A stop-gap measure was needed, therefore.
If, however, it should prove necessary to relegate the use of the
commerce power still further into the future, some other national
power would have to be found upon which a permanent measure could
be pegged. Uncertainty as to the form a new law might take pro
vided an additional reason for stop-gap action. The solution ap
peared to lie in the war power which, although still fuzzy at the
edges, was thought broad enough to allow a temporary and direct
prohibition of child-labor. Accordingly, a sub-committee of the
National Child Labor Committee in cooperation with the American
Federation of Labor, the National Consumers’ League, and the Chil
dren's Bureau set to work to formulate a war measure and to study
the problem of permanent legislation."*■ "Indeed," wrote Professor
Parkinson, "it might happen that a war measure would be effective
until a favorable opportunity is presented for a review by the

2
Supreme Court of its decision in the Dagenhart case."
Apparently with the verbal approval of President Wilson, the
child-labor act of 1916 re-appeared in the House on August 15, 1918,
without reference to interstate commerce, as a bill "to provide for
^ The Child Labor Bulletin, Vol. 7, Aug. 1918, pp. 96-97, Nov.
1918, pp. 160-161.
^ Ibid., Aug. 1918, p . 97.
the national security and defense" by prohibiting child labor for
the duration of the war and six months.1 The bill, introduced, by
Representative Keating, was more direct than other emergency action
which had been suggested — for example, that employers of child
labor be refused railroad facilities or fuel, which were under
governmental control, or even that they be declared alien enemies.2
1 H. R. 12767, CR 65:2: 9238. For the text of the bill, see The
Child Labor Bulletin, Aug. 1918, Vol. 7, pp. 98-99.
Although he was pre-occupied with the war, Wilson had found

time on March 29, 1918 in a letter to the Secretary of Labor to
affirm the need for "certain irreducible minimum standards" for
children and to express his agreement with "the conviction-among
the Allies . . . that the protection of childhood is essential to
winning the war." R. S. Baker, Woodrow Wilson, Life and Letters,
Vol. 8, pp. 61-62.
On M a y 11, Wilson sent a letter to Senator Robinson in behalf

of an appropriation for child welfare in the District of Columbia.
Ibid., pp. 138-139.
After Hammer versus Dagenhart, Wilson took no public initiative

to push a substitute law. Two days after the decision, Wilson is
reported to have said to A. S. Burleson, his Postmaster-General,
"Burleson, I want a Child Labor Law that will stand. How can I get
it?" Burleson replied that he would tell Wilson how; but the solu
tion was not also reported. A. S. Burleson to R. 8. Baker, quoted
ibid., p. 187. Burleson stated also that he was opposed to another
child-labor law.
On July 18, Wilson discussed the child-labor problem with four

representatives of the N.C.L.C. and Samuel Gompers of the A. F. of
L. and again with Gompers on July 29. Ibid., p. 285; see New York
Times, July 30, 1918, p. 18. Wilson approved of the Keating bill,
according to R. G. Fuller of the N.C.L.C, See The American Review
of Reviews, Nov. 1918, Vol. 56, p. 500.
Wilson's Secretary of Labor in a speech on June 19 to the A. F.

of L. convention, stated that since the Supreme Court had ruled
against "the method", "some other way" would be found. Report of
the Proceedings . . • A. F. of L „ 1918, p. 305.
2 Th® Child Labor Bulletin, Aug. 1918, Vol. 7, p. 96. See also
above p. /6s, -fn.
None of these actions were proposed in Congress, nor was the Keating
hill passed. War-time circumstances served, however, to increase
the effectiveness of action which was taken under the proprietary
power of the national government. On July 12, a month before the
Keating hill was introduced, the War Lahor Policies Board, requested
employers not to use child labor contrary to the 1916 standards and
announced that a clause would be added to all government contracts
prohibiting such l a b o r T h u s , said the New Republic, the spirit

g
of Hammer versus Dagenhart was effectively nullified. Some repre
sentatives of industry openly stated that they would ignore the
Board's request; and the American Cotton Manufacturer's Association,
on the grounds of patriotism and constitutionality, advised that
contracts should not be accepted on such conditions. Advocates
of the Board's action could, on the other hand, find support even
in the Dagenhart case, "The court," said Miss Julia Lathrop, chief
of the Children's Bureau, to which enforcement of the contract pro
vision was assigned, "made plain its belief that child labor is an
evil,
Among the proposals for legislation with coverage more wide
spread than that of the War Lahor Policies Board, the Keating war-
1 For the text of the clause, see ibid., p, 80, See also ibid.,
pp. 94 and 201,
2 Aug. 3, 1918, Vol. 16, p. 7.
3 See The Child Labor Bulletin, Aug. 1918, Vol. 7, p. 80; New
York Times. Nov, 24, 1918, Section III, p. 8; The Survey, Nov. 2,
1918, Vol. 41, p. 139.
4 New York Times, Oct. 13, 1918, Section IV, p. 1.
/7r
power bill received most attention and on September 25, 1918 was
ordered out of committee by a vote of five to three and over con
stitutional objections.-*- Suggestions for other courses of stat
utory action had reached the stage of embodiment in bills and
introduction into Congress, but no further. In June, almost two
months before introduction of the Keating bill, Senator Kenyon had
submitted a bill "to deny the use of the mails to persons or con-
p
cerns employing child labor." Soon afterwards, Senator Pomerene
introduced two bills at the same time -- one based upon the commerce
power, the other upon the taxing power,3 The former bill provided
for prohibition in interstate commerce, which the Child-Labor Act
had also done; but following the precedent of the Webb-Kenyon Act,^
which had divested liquor of its interstate character, the bill
prohibited shipment into a State only when the shipment constituted
a violation of State law.
^ The Child Labor Bulletin. Nov, 1918, Vol. 7, p. 161. The

bill does not appear to have been reported in the House, however.
"A few members of the House Committee on Labor . . . are

saying that no specific grant of a general war power is discover
able in the Constitution." R, G. Fuller, "Child Labor and the War,"
The American Review of Reviews, Nov. 1918,-Vol. 58, p. 502.
2 S. 4732, June 19, 1918, CR 65:2:7993. A substitute bill,

S. 4760, with the same title was submitted on June 27, 1918. CR
65:2: 8341.
3 S. 4762, "to prevent the shipment of products of child labor

into States in which the employment of child labor is made -unlawful,"
and S. 4763, "providing for the taxation of articles and commodities-
in the production of which child labor is employed," June 27, 1918,
CR 65:2: 8341.
4 Act of March 1, 1913, 37 Stat. 699, upheld soon after the

passage of the Child-Labor Act in Clark Distilling Co. v. Western
Md. Ry. Co., 242 U.S. 311, Jan. 8, 1917.
"It is hoped," said Pomerene of his hills on the floor of the
Senate, "that either one or the other, or perhaps both of them, m i l
meet the constitutional objection to the recent legislation under
the Supreme Court decision."1 However, in regard to the commerce
power bill, Professor Parkinson saw little hope that a Court which
had refused to extend the Lottery Case would approve Pomerene's ex
tension of the Webb-Kenyon Act since the Court in upholding that

£
Act had spoken pointedly of "the exceptional nature of the subject."
Kenyon's bill to exercise the postal power, said Parkinson, also
followed Congressional precedent, the requirement that mail addressed
to persons who violated the Espionage Act be returned. But, he con
cluded, "irrespective of . . . constitutionality," Kenyon's bill

3
would probably be defeated in Congress.
It was the taxing power which was, finally, to be used. The
poJ-ice power implications of John Marshall's famous dictum that
"the power to tax involves the power to destroy" had been increas
ingly realized in recent years although the taxing power had been
used less frequently than the commerce power for police purposes.^
1 CR 65:2: 8341.
2 The Child Labor Bulletin. Aug, 1918, Vol. 7, p. 95. And see
242 U.S. 311 at 332.
3 ", , . the opposition to such use of the control of the mails

would probably prevent its adoption." The Child Labor Bulletin,
pp. 95-96.
". . . i n looking over the Committee on Post Offices and Post

Roads, " Kenyon said, before his bill had been referred to a com
mittee, "I would rather have it go to the Committee on Education
and Labor." Hardwick objected, and the bill was referred to the
postal committee. "I feel that it is going to its death," said
Kenyon. CR 65:2: 7993-7994. Note also CR 65:2: 8341.
4 For the dictum, see 4 Wheaton 316 at 431.
The most important precedent was the prohibitive tax on butter-
colored oleomargarine. In McCray v. United States, in 1904, a
divided Court had refrained from inquiring into "the motive or pur
pose of Congress" in levying taxes. Political rather than judicial
restraints, said Justice White, were to be relied upon if Congress
abused its lawful authority to tax althoxigh, he added, the judiciary
would not stand by if the abuse was "so extreme" as to violate "fun
damental rights."'*' Within three years, in 1907, the first bill to
tax the employment of children was introduced, a month after Bever-

g
idge had introduced his bill. Both bills were re-introduced in
the following Congress. From 1908 through 1912, there was little
interest in a national child-labor law. In 1912, Congress again
used the taxing power for police purposes when it destroyed the
poisonous white phosphorus match industry, and, in 1914, when it
discouraged the selling of cotton on "future" contracts.4 Neither
1 195 U. S. 27 at 59, 64.

^ See above p.*??-
^ 37 Stat. 81, Opposition from the match industry was avoided
through President Taft's success in securing the release of non-
poisonous match patents. R. E. Cushman, "Social and Economic
Control through Federal Taxation," Selected Essays on Constitutional
Law, Vol. 3, p. 556.
4 38 Stat. 693. Held void in a federal district court upon a
"technical • . . point." Although the tax features had been
introduced in the House-as a substitute for the Senate's provisions
for exclusion from the mails, the act was a revenue bill which had
originated in the Senate — the bill was "S. 110." Hubbard v. Lowe,
226 Fed. 135. Congress re-enacted the bill in 1916. 39 Stat. 476.
Perhaps an additional bit of evidence that Pomerene's tax bill
was not understood to be for revenue may be found in the failure
of Simmons (D, N.C.), an opponent of the first child-labor act,
to note the technical point in regard to theorigin of revenue bills
when he moved that the billbe referred to the Finance Committee.
CR 65:2; 8341. See also below p,/7?fn.y.
act was brought to the Supreme Court. In 1914, also, the levying
of a nominal tax on dealers in narcotics provided the peg upon
which an elaborate system of regulations was erected.1 In that
year, a bill was again introduced to tax the use of child labor.
However, five child-labor bills, all based upon the commerce power,
g
were already before the Sixty-third Congress. By making policy in
the field of interstate commerce, Congress was developing a national
police power which supplemented State activities; taxing measures,
on the other hand, ignored State lines and represented more exten
sive national control. No child-labor tax bills were Introduced
in the Sixty-fourth Congress, which passed the first child-labor
act, although outside of Congress some individuals continued to
prefer the tax approach. At least for one of the early leaders of
the child-labor movement, Hammer versus Dagenhart brought "a kind
3
of melancholy satisfaction."
Recourse to the taxing power for a second child-labor act
aroused mixed feelings. There was widespread acceptance of the
usefulness of taxation as a weapon against war-time profiteering.
Only one week before the Dagenhart case, President Wilson, in
urging an effective 1918 Revenue Act, had declared to a joint
session of Congress, "The profiteering that can not be got at
38 Stat. 785. The Narcotic Drug Act was upheld, 5 to 4, one

week after the child-labor tax became law, U. S. v. Doremus, 249
U. S. 86 (March 3, 1919).
^ See above p. p. so, ft?. <2.
® Mr. George W. Alger, one of the founders of the New York Child
Labor Committee, Quoted in New York Times, June 16, 1918, Section
IV, p. 4.
by the restraints of conscience and love of country can be got at
by taxation."-*- Later, it was not a difficult transition for others
to conclude that those who profiteered from the employment of chil
dren should also be heavily taxed.2 Yet, said Parkinson, in regard
to child-labor standards, " . . . many persons in and out of Congress
do not like to see the taxing power used for suchpurposes"; and,
in the light of the Dagenhart case, there was "realdanger" that
the Court might not follow precedent. Nevertheless, Parkinson
concluded that a tax on child labor should be seriously considered.
To many, the Court's restraint in not examining motives for tax
legislation was so clearly precedented that only by overruling the
oleomargarine case did it appear that the Court could hold a child-
labor tax void. Confidence in the survival of the second child-
labor act was to be even greater than the confidence which had
existed with regard to the first act.
1 May 27, 1918. CR 65:2: 7115.

g
Wilson was quoted by Senator Lenroot, speaking before a con
ference of the N.C.L.C. on Dec. 7, 1918. The Child Labor Bulletin.
Feb. 1919, Vol. 7, p. 256.
3 ILid., Aug. 1918, Vol. 7, p. 95.
II. The Second Child-Labor Law
A. Introduction
Within nine months after Hammer versus Dagenhart, the first
child-labor act was re-born as a taxing measure. The second birth
was a relatively painless one; it was accompanied by no hearings,
no minority reports, little debate, and not even a roll-call vote
in the House. With such ease, Congress exercised a power even
more pervasive than the commerce power and radically extended na
tional police regulation into the highly controversial area of lahor
standards* How did this happen? And how, particularly, was the
constitutional problem met? For, like the old act, the n e w act
failed to survive. Hot only wasit to be struck down more decisively
than the first — by an 8 to 1 decision of the Court; but also, Con
gress was to be informed by Chief Justice Taft that "the analogy of
the Dagenhart Case is clear.
Soon after Pomerene had submitted his tax bill in the Senate,
the House Ways and Means Committee began its hearings on the un
precedented and slow-moving Revenue Bill of 1918. On July 12, a
bill was introduced in the House "for the taxation of articles of
commerce in the production of which child labor is employed", re-
**- Child Labor Tax Case (Bailey v. Drexel Furniture Co.), 295 U. S.
20 at 39, May 15, 1922. Clarke dissented without opinion.
ferred to that Committee, and in time rejected.'*' Organized effort
was still behind the Keating war-power bill, which was acted upon
g
in committee as late as September 25. Meanwhile, in anticipation
of the end of the war, the National Child Labor Committee was draf-
ting a permanent taxing measure; but no move was made to incor
porate a child-labor tax within the Revenue Bill. Hearings on the
bill were held by the Senate Finance Committee in September, and
many amendments and various riders were offered in October.^ The
sudden ending of the war in November led Secretary of the Treasury
McAdoo a few days after the armistice to state the need for "instant
1 H.R.12705, by Green (R, la.), CR 65:2; 9051. There was no

mention of this bill in the printed hearings of the Committee or
in the Committee's report.
On October 16, while the revenue bill was being considered by
the Senate Committee, H. R. 13087, with a title the same as that
of Green's bill, was introduced by Gard (D, Ohio)# CR 65:2: 11310.
^ See above p. /7/
® See "Fourteenth Annual Report . . . For the Fiscal Year Ending
September 30, 1918", in The Child Labor Bulletin. Nov. 1918, Vol.
7, p. 161.
^ The Senate's Finance Committee did not have Pomerene's tax

bill before it. The chairman — Simmons (D, N.C.), an opponent of
the first child-labor act — had moved that the bill be referred
to his committee rather than to the Committee on Interstate Com
merce as Pomerene had suggested. On a roll-call vote, the twelve
senators who had voted against the 1916 act were joined by twenty-
nine others in support of Simmons' motion; but they were defeated
by one vote. CR 65:2: 8341.
Two weeks later, Senator Lenroot introduced a bill "to provide
increased revenue", which was referred to the Finance Committee.
S. 4823, CR 65:2;-8964. This was, apparently, a bill to tax child
labor. See Pomerene's remarks, CR 65:2; 11560.
No proposal to tax child labor was mentioned in the printed
hearings of the Finance Committee on the revenue bill.
reconsideration" of financial plans and "prompt enactimt" of a
revenue bill.^"
T he fact of war had affected the discussion of the problem of
constitutional child-labor legislation. The urgencies of the war
probably accounted for the absence of Wilsonian leadership. Now
the ending of the war and the immediate need for a revenue bill
provided an opportune circumstance for the proponents of a child-
labor tax, especially since the end of the Sixty-fifth Congress
was less than four months away. On the day following McAdoo's let
ter, Senator Pomerene, a Democrat, on behalf of himself and two
Republicans, Kenyon and Lenroot, offered as a rider to the revenue
bill an amendment embodying the standards of the first child-labor
act and levying an excise tax, in addition to all other taxes, of

3
10 per cent on the net profits of persons employing child labor.
1 Quoted in Senate Report No. 617, Dec. 6, 1918, "Revenue Bill

of 1S18", 65th Cong., 3rd Sess., p. 2.
2 According to R. G. Fuller of the N.C.L.C., Wilson had "reaffirmed

his approval of the Keating bill after he had received a request
for an armistice. He also assented cordially to the plan of basing
permanent legislation on the taxing power of Congress." "Child
Labor and the War" The American Review of Reviews, Nov. 1918, Vol.
58, p. 502,
A feature story in the New York Times for November 24, 1918,
Section III, p. 8, attributes to Wilson a quotation in which it
is stated that a child-labor tax, like the taxes on State bank
notes, colored oleomargarine, and poisonous matches, was constitu
tional .
(No statement by Wilson himself on the constitutionality of

a child-labor tax has been found aside from the Times 1 quotation,
for which no reference was given.)
3 Nov. 15, 1918. CR 65:2; 11560. For the text of the amendment
see loc. cit. Pomerene, Kenyon, and Lenroot were not members of the
Finance Committee.
In the face of bi-partisan support, the opposition of the chairman
of the Finance Committee, Simmons of North Carolina, was ineffectual.
Adoption of the amendment was moved by Senator Henry Cabot Lodge
and was carried, by a large majority of the Committee.-'- On December
6, a report on the Revenue Bill was submitted to the Senate with a
short description of Title XII, the child-labor provision, and no

g
further comment. After being passed over twice, during the pro
longed debate which followed, TitleXEI was reached on December 18,
debated for a few hours without excessive verbiage by a dozen sen-
ators, and approved by a vote of 50 to 12.
1 CR 65:3: 611.
2 S. Rpt. No. 617, 65th Cong., 3rd Sess., p. 18. The four
ranking Democrats on the Committee voted against the child-labor
amendment in the Senate. Only one of them, however, Thomas of
Colorado, presented a minority report, but his report aid not men
tion child labor.
3 See below p. /8S.
B. The Senate debate
The Senate debate was almost entirely a debate on constitu
tionality, but there was little disposition to engage in prolonged
legal argument. The supporters of the bill appeared either certain
of constitutionality or did not wish to prolong discussion of a
question upon which they did not have final judgment. Nor were the
opponents disposed to discuss at length a question which they saw
already decided by the Court. "I think we all know what the decision
was," said Senator Hardwick. "We fought it out here through weary
weeks and months, and it was decided fairly on its merits."^ "The
decision," remarked Kenyon, "was four to five." But that was true
of nearly every important recent decision of the Court, said Hard
wick. "...
the decision of the court is the controlling thing
2
and it ought to be controlling with u s 0" So obvious a barrier was
Hammer versus Dagenhart in the present instance, according to the
opponents, that passage of a child-labor tax would amount to "nulli-
fying the decision of the Supreme Court." Thus, for Hardwick,
there was a "moral side" to the question before the Senate; for
Overman, the question could be resolved "upon the grounds of morals
a l o n e . I n any event, they agreed, a child-labor act would again
0^ 65:3: 610. Having won, and perhaps to consolidate the

victory, Hardwick looked back upon the 1916 debate with magnanimity,
"The Senate was patient with us and heard us at length on the ques
tion. The matter was thoroughly debated and thoroughly thrashed out.
I think the proposition was well argued from both standpoints." CR
65:3: 609.
2 CR 65:3: 610. Cf. Hardwick's remarks in 1916, above pp
3 Overman (D, N.C.), CR 65:3: 613.
4 CR 65:3: 610, 613. See also the remarks of E. D. Stoith (D, S.C.),
CR 65:3: 612.
be declared void."*"
Kenyon's reference to the 5 to 4 vote in Hammer versus Dagen
hart did not signify a rejection of that decision by the spokesmen
for a child-labor tax. Senator Lodge, for example, made clear to
Overman that the Dagenhart case was not being questioned. What had
been held void, said Lodge, was the "form of legislation . . . there
fore it would seem to me that our only resort is to the taxing power."
Exercising that power would nullify the Dagenhart case, he said, only
"so far as its practical effect as a law is concerned, but not its
legal validity."2 Senator Kellogg, Republican of Minnesota, found
in the decision a positive sanction for using the tax power to ac
complish the same objective.3 On the other hand, Lenroot and Pomer
ene generally ignored Hammer versus Dagenhart.^ The oleomargarine
case, said Lenroot, stated as plainly as possible that the Court
would not inquire into motives and that through taxation Congress
1 See CR 65:3: 609-612.
2 CR 65:3: 611,
3 "I think the decision of the Supreme Court is placed upon the
ground that Congress had no power to prohibit a State from manu
facturing a certain article purely in intrastate commerce, but that
the same object could be obtained by levying a tax." CR 65:3: 613.
Cf. Kellogg's response to Senator Owen, above p */$?.
For an abstruse interpretation of Hammer v, Dagenhart, see the

remarks of France (R, Md.), who supported the amendment. The Court,
he said, was opposed to prohibition, which was negative, but was not
opposed to regulation, which was positive. Nor had there been any
denial that Congress had some jurisdiction over children. CR 65:3: 619.
^ For a critical analysis of the Dagenhart case by Lenroot, see

his speech before the annual N.C.L.C. conference on Dec. 7, 1916.
Lenroot concluded that the Court's decision "must be respected by
us all" and that if the Court continued to act as it had in the
Dagenhart case, Congress would no longer be the judge of policy.
The Child Labor Bulletin. Feb. 1919, Vol. 7, p. 254-255.
could accomplish resuLts indirectly. "I do not believe there has
ever been a question before Congress," he said, "where the law has
been so clearly and so well settled." The tax could not be held
void without the Court's overruling "a hundred cases.""*' Pomerene
also was "very confident that in view of the long line of decisions"
“ 2
the tax would be upheld.
Only Kenyon among speakers for the amendment seemed bothered
by the Dagenhart case and uncertain about what the Court would do.
The decision had "keenly disappointed" him, he said, ". . . i t
seems to me perfectly proper and perfectly right that we should try
and find some means of nullifying that action of the Supreme Court,
and that is what we are trying to do." Kenyon's phraseology ap
parently struck Lenroot as unfortunate. Was it "exactly correct,"
Lenroot asked, "to assume that we are nullifying the action of the
Supreme Court when the Supreme Court nullified the action of Congress?
That was "better stated," Kenyon replied; and in keeping with Lenroot'
suggestion that Congress was simply re-affirming its policy, he cited
the passage of the second Employers' Liability Act as an example of

4
Congress' trying "some other method." "Now," he said, with reference
to child labor, "we try another way, and pass that on to the Supreme
1 CR 65:3: 616 2 CR 65:3: 618.
3 For Kenyon's remarks, see CR 65:3: 618-619.
^ The coverage of the first Bnployers' Liability Act, 1906, was

narrowed in the second act, 1908, following the first Bnployers'
Liability Cases. Both acts, however, were based upon the commerce
power. 34 Stat. 232, 35 Stat. 65, 207 U.S. 463. See also 223 U.S. 1.
Court for them to state whether or not it is constitutional legis
lation.”'1'
Was it proper for Congress to pass such a question on to the
Court? "I have come to the conclusion,” said Kenyon, "that there
is no constitutional question so clear that it is not without very

2
serious difficulties.” "In the final analysis," the Court would
decide. For Kenyon, however, uncertainty about the Court's future
action did not justify ignoring the constitutional question. Un
certainty was often so great that an opposite inference was necessary:
"in the final analysis" each senator had to decide the constitutional
question in his own mind. What the Court would do was merely a
"practical question." Yet, in spite of the recurring necessity "to
take some chances”, Kenyon could not see how the child-labor tax
could be overthrown without also overthrowing the oleomargarine case.
On the surface, at least, confidence that the tax would be
upheld was even greater than the confidence shown in 1916, So con
sistent was the Court's record of abstention from inquiry into Con
gressional motives that even the opposition seemed to expect that
the Court would, uphold the tax.^ Although both Hardwick and Overman
stated that they thought the tax would be held void, their expecta
tion rested mainly on Hammer versus Dagenhart. Minus that case, the
opposition's constitutional argument was Weak. Hardwick attempted
"Taxation," said Kenyon, "is the only method left." CR 65:3: 618,
2 Kenyon reminisced: he had expressed such a feeling about the

first child-labor bill and also about the Webb-Kenyon Act of 1913,
In regard to the latter, "so great a lawyer as President Taft" and
the Attorney General "in a very learned opinion" had agreed that it
was unquestionably unconstitutional, yet the Court had upheld it.
Loc. cit.
3 See particularly Thomas, below p j S f .
to distinguish the phosphorus match legislation hy noting that the
articles taxed were dangerous; and Overman argued that taxation was
valid only for the purpose of r e v e n u e , T h e Tax on state bank notes
it was said, "might have been to unify , . . banking," But this
suggested distinction was not insisted upon by Hardwick nor even
mentioned by Overman, The important argument was that neither this
tax nor the most troublesome precedent, the tax on colored oleomar-
£
garine, invaded the area reserved by the tenth amendment. Here,
Hammer versus Dagenhart was the rock upon which the expectations of
the opposition were founded. In that decision, said Hardwick, the
Court had defined the area that Congress had. "no right even to touch
Neither Hardwick nor Overman asserted that the Court might inquire
into motives. The attempt to move again into an area clearly for
bidden was considered so blatant that such an assertion was, appar
ently, unnecessary,^ The existence of the Dagenhart case was, in

5
short, what distinguished the proposed tax from previous taxes.
1 CR 65:3: 610, 614, 8 CR 65:3: 611, 613.
3 Hardwick, CR 65:3: 609, 616.
4 Overman stated that here, unlike the situation faced by the

Court in the oleomargarine case, it had been admitted on the
floor of the Senate that Congress was acting "for the purpose of
destroying the decision of the Supreme Court,!' "I suppose," he
said, "the Supreme Court will read this Record."- CR 65:3: 612.
^ Hardwick, for example, was "very well aware of the decisions."

"But it does seem to me, Mr, President," he said, "that when we
• . • exercise the taxing powers , . . for the express purpose of
doing indirectly something that the highest court in the land has
decided with respect to this very matter and. with respect to this
identical language that we can not do directly in the form of a
bill, it cannot be expected that the decision of the court will be
very different." CR 65:3: 609; also 610, 616,
How seriously did Hammer versus Dagenhart condition the ar
guments of the supporters of the tax? The case for the constitu
tionality of the taxing method was, clearly, strong enough to warrant
another try at ending child labor. The Court, it was said repeatedly,
did not inquire into motives. In effect, the Court's power over
the discretion of Congress was denied. Nevertheless, "while not
inquiring into motives," the Court might strike down a tax, said
Kenyon, ", . , if it is apparent to them that the taxing power has
been used to strike down a fundamental right."'1' This power was
denied by none of the senators who spoke for the bill. Both Kenyon
and Lenroot insisted that the right to employ children was not such
g
a right. That the Court might adjudge as fundamental the right of
the States to regulate employment was passed over.
It would seem that Hammer versus Dagenhart did not augur well
for continued reliance on the Court's sense of self-restraint. If
the virtual re-enactment of the voided child-labor law did not anta
gonize the Court, however, perhaps a callous disregard of any con
nection between taxation and revenue might do so. The legislative
history does not reveal clearly what influence this possibility had
on the proponents of the tax. But it is of interest to examine whe
ther any rationale was offered to justify the tax as a tax on revenue.
The Finance Committee had received no estimate of revenue to be
Overman, when reminded that the tax on state bank notes had
not been for the purpose of raising revenue replied that that tax
did not nullify a Supreme Court decision. CR 65:3: 613.
CR 65:3: 619. See also the remarks of Lenroot, CR 65:3: 614-616.
2 CR 65:3: 610, 616, 619.
1
collected from persons employing child labor, and the committee
report had omitted the child-labor tax from its statistical summary
of revenue expected.^
On the floor of the Senate, Lodge admitted that revenue might
be "little or nothing." "The main purpose," he said, "is to put a
stop to what seems to be a very great evil." Kenyon, one of the
three sponsors of the amendment, described the tax as "the only
method left." In the light of precedent, he said, the Court had no
right to assume the tax was "a mere subterfuge" and would produce
no revenue.4 However, Kenyon's fellow sponsors, Fomerene and Lenroot,
presented a positive case for supporting the tax as "a tax on profits.
This rationale and the expectation that the tax would stop child
labor were expressed most distinctly by Lenroot.
It can be voted for . » . not . . . as a subterfuge

. . . but . . . upon the theory that by the exercise
of the taxing power we will deprive employers of
child labor of profit. Depriving them of profit, it
will follow that the employment of child labor will
cease.6
If, then, there were to be profits from child labor, those
profits would be taxed; but no profits were expected. Yet in spite
of that expectation, Lenroot and Fomerene seemed careful not to
1 Simmons added, " . . . and I do not think anyone suggested that

any would be derived." CR 65:3; 612.
2 S. Rpt. No, 617, 65th Cong., 3rd Sess., pp. 2-3.
5 CR 65:3: 611. 4 CR 65:3: 619.
^ Pomerene's phrase, CR 65:3: 618, Kellogg agreed. CR 65:3: 617.
6 CR 65:3: 616.
admit that the tax had no revenue purpose. Pomerene in particular
engaged in some verbal tightrope walking which may have been de
signed to influence the Court.^ In reply to Overman's assertion
that nullification of the Court's decision was admitted, to be the
sole purpose of the tax, Pomerene reminded Overman that no Senator
"can admit a motive of Congress." But everyone knew the motive,
said Overman; ". . . w e might as well be candid with each other."
Fomerene replied, "Looking at this from the standpoint of the con
stitutionality of the provision, it may be admitted that one of its
purposes is the raising of revenue." After the invalidation of the
first child-labor act, Pomerene went on to explain, "The friends of
the measure sought to adopt some other plan . . . . we saw fit to
draft this provision for the purpose of raising revenue and at the
same time to meet the child-labor problem." Pomerene insisted that
"we are not shying away from" an avowal that one purpose of the act
was opposition to child labor. But he did not say that the abolition
of child labor was the main purpose; the tax had "a two-fold purpose.
Perhaps because his suggestion that revenue was an equally important
objective was hardly convincing, Pomerene returned to his earlier
argument. ", . . i t makes no difference to the Supreme Court," he
said, "what other purpose may have been in the minds of the drafts
men of the law."
For his remarks, see CR 65:3; 613.
^ Pomerene did not state, as did Lenroot, that he expected no

revenue. Nor did he state the contrary except for the following
reply to a question as to whether he believed that revenue would
be raised: "I do; and if it does not, then you have nothing to
complain of,-because — ." He was interrupted, and the discussion
moved on. Loc. cit.
C. Passage in the Senate
The merits of national child-labor legislation were referred
to only incidentally during the Senate debate, but there is no
reason to believe that considerations of policy in 1918 were sig
nificantly different from those in 1916* Nor were considerations
of grand policy — the question of the extent of national autho
rity — much different although taxation provided an even more
far-reaching precedent than the regulation of interstate commerce.
Therefore, although a quite different power was now being proposed
for exercise, it is not surprising that the votes in the Senate
were similar — in 1916, 58 to 12; and in 1918, 50 to 12 *2
Did the change in constitutional circumstances account for
any differences in the Senate's vote in 1918? Two of the senators
who had voted Yea in 1916 now voted Nay. but they did not explain
their change on the floor*3 On the other hand, two senators who
had voted Nay in 1916 (and one who had announced hisopposition)
now voted Yea.4 Only one of these senators, Boies Penrose of
Pennsylvania, who had opposed the first act on constitutional
grounds, spoke on the amendment; nearly two months later he ob
served, without reference to his vote for the child-labor tax,
-L The broader coverage of the taxing power was not an issue in

the debate* For example, Hardwick, after referring to the Dagen-
hart case, stated, "Now we are presented with exactly the same
proposition • • • except • • • by means of a tax levy*" CR 65:
3: 609*
2 CR 65:3 : 620 and see above pp* ?!-&*■
3 Beckham (D, Ky.) and Ohderwood (D, Ala*).
4 Fletcher (D, Fla.), and Penrose (R, Penn.), and Dillingham

(R, Vt.)*
permission of the copyright owner. Further reproduction prohibited without permission.

that legislation on child labor was "a matter which the Supreme
Court has declared to be beyond the power of Congress.""*" For one
senator — Thomas, a Democrat of Colorado — the constitutional
circumstances had changed significantly* Although he had been
"convinced" that the first child-labor act was unconstitutional,
he thought a tax act proper. But he was still opposed although
now for a "practical" reason. "I think we have gone as far as we
ought to go in using the taxing power of the United States for

O
the purpose of social reforms."
The other opposition speakers, who offered mainly constitu
tional objections, also presented arguments of grand policy.
Again, as in 1916, the specter of the eight-hour day appeared,
the power being exercised was described as a "Frankenstein", and
the end, "a great centralized socialistic body." Again, there
was some uneasiness even among the spokesmen for the tax. Senator
Penrose's remarks were made during a speech on the Conference

Report and were incidental to his criticism of riders on the Re
venue Bill, including the child-labor rider.
By voting for the child-labor tax, Penrose was following his

party's line, a fact which he did not mention. He did remark,
however, that the tax would not affect Pennsylvania and that "in
a very large mail" he had received no letter from the North in
opposition to the-tax. CR 65:3: 3179-3180. For 1915, see above
p. 9 9.
^ For Thomas' remarks, see CR 65:3: 616-617. Although he con

sidered the proposed tax unlike similar taxes because of the
Dagenhart case, Thomas presumed that it would be upheld (as he
had expected "in all probability" that the first act would be up
held — see above p
® See the remarks of Hardwick and Smith (D, S.C.), CR 65:3: 614,
611, 612. As to the possibility of a tax on employers who did not
use the eight-hour day, Lenroot was unprepared to answer the ques
tion of due process which such a tax would raise; but as to con
stitutional power otherwise, he did "unhesitatingly say 'yes.'"
CR 65:3: 614.
Lodge, who had "carried through", he said, "a hill . ♦ • to exter
minate • . • white phosphorus matches’1, did "readily admit" that
taxation was an "extreme method" and "a dangerous power to use."**-
But beyond these remarks of Lodge, there was no sign of apprehen
sion among those who voted Yea* Perhaps apprehensive persons
found in Hammer versus Dagenhart a reassurance which had been ab
sent in 1916. That decision was, indeed, being challenged, but
the tenor of the debate was not alarming: the Senate was trying
to find a route not barred by the Court rather than running the
Court’s blockade. Could Congress get through? Even the apathetic
must have looked on with interest.
1 CR 65:3: 611. Lodge's record as a leader in behalf of child-

labor legislation was not, over the years, a steady or enthusi
astic one. See above pp. . Six months earlier, he had voted
with the opposition on the question of committee referral for
Pomerene's tax bill. See above p. 1 7 7 9.
D. Final passage
In 1916, there had been some hope that the child-labor bill
might be postponed when it reached the Senate, In December 1918,
after the Senate had acted a second time on child labor by approv
ing a rider to a complicated and overdue Revenue Bill which had
already passed the House, there was little Inclination on the part
of the opposition in the House to speak even for the record. Talk
was hardly necessary. As the Senate debate had demonstrated, the
question of using the taxing power had stirred no new constitu
tional battle. The Senate had seemed almost as willing as it
hoped and expected the Court would be willing to close its eyes to
the constitutional expansion which was implicit in a child-labor
tax. The issue before Congress, as in 1916, was national regula
tion of child-labor standards. On this, the proponents still had
the votes; and the opposition (and its sympathizers among those
who voted Yea) had Hammer versus Dagenhart,
That an overwhelming bi-partisan majority was simply trying
again to reach a particular objective was recognized by Claude
Kit chin of North Carolina, the chairman of the House Ways and
Means Committee. KLtchin had voted against the 1916 act and was
opposed to the rider; but he recognized "the overwhelming senti
ment of the House . . . in favor of the child-labor amendment
and, since he felt a heavy responsibility to get the Revenue Bill
1 CR 65:3 : 927. See also CR 65:3: 928 for Kitchin's "personal

views" and his agreement with the general criticism of Parker
(R, N-.J.) against "legislation in the guise of taxation." Parker
had voted against the 1916 act.

through, he readily assured Keating, Mann, and Cooper that the
conferees would concur on child labor.1 The conferees did con
cur; and, on February 8, their report came up for discussion in
the House.
No one who had spoken in opposition to the first act now
bothered to speak against the tax although forty minutes were
granted to two members who had been silent in 1916 — Venable
and Humphreys, both of Mississippi. Old ground was covered with
vigor, and there were interruptions by a half-dozen proponents.

p
But there was no serious debate. On Venable's motion to recommit
the report, the House divided without a roll call, 15 to 171.®
The conference report as a whole was then agreed to on a roll call
vote of 312 to ll.4 Within the month, the President had signed
the bill; and in two months, the tax was in effect.
1 CR 65:3: 927, 929. With this understanding and others, the

House approved a Rules Committee resolution that the revenue bill
go to conference with disagreement as to all of the 602 amendments.
CR 65:3; 944-945.
2 CR 65:3 : 3029-3033. See also the remarks of Fordney (R, Mich.)

and Garner (D, Tex.), CR 65:3: 2454.
3 CR 65:3: 3035.
4 L o c . cit. Of the 46 representatives who had voted Nay in 1916,

29 were present; 21 voted Yea, one "present", and 7 Nay.
3 The conference report was discussed on three days in the

Senate with no further mention of child labor (aside from Penrose's
remarks, noted above pp. 32-33) and agreed to without a roll call
vote. See the Congressional Record for Feb. 11, 12, 13, 1919.
The bill was signed by the president on Feb. 24, 1919 and
went into effect on April 25, 1919 . 40 Stat. 1057, 1138 (Title XII).
For a display of meanness, see Hardwick's tactics when an

appropriation item to cover the expenses of inspection was offered
two days before the bill was signed. CR 65:3 : 3848-3850.
Toward Fair Labor Standards — 1932-1958
Io Introduction
A. In general
Twenty years after Hammer v. Dagenhart, on June 14, 1938,
Congress retraced the commerce-power path of the first Child-
Labor Act and established in the Fair Labor Standards Act not
only child-labor but also minimum-wage and maximum-hour
s t a n d a r d s O n c e again and partly in the same words, Congress
prohibited the shipment in interstate commerce of goods

produced in establishments which used child labor. Also
prohibited was the shipment of goods in the production of
which certain persons were employed at substandard wages and
hours. In addition, Congress invoked another constitutional
formula to make the statute more workable: the employment at

substandard conditions of persons engaged in the production
of goods for commerce was directly forbidden. In 1941 in
United States v. Darby, both formulas were upheld by a
unanimous Court; and Justice Stone, in an opinion which for

its broadly national sweep could be compared with Marshall’s
opinion in Gibbons v. Ogden, expressly overruled Hamm er v.
Dagenhart after pronouncing it already dead.
The conclusion is inescapable that Hammer v. Dagenhart

was a departure from the principles which have pre
vailed in the interpretation of the Commerce Clause
both before and since the decision and that such
vitality, as a precedent, as it then had has long
1 52 Stat. 1060. The act was signed on June 25, 1938
m
since been,exhausted. It should be and now is

overruled.
The roots of the Fair Labor Standards Act extend deep
into the history of state and national legislation. This

chapter is concerned with the background of the act during the
New Deal. The history of S. 2475, which became enacted,
spread over a period of thirteen months and was complicated

mainly by changes in the policy of the bill and by political
maneuvering. Once S. 2475 was introduced, there was no longer
any question that the Administration and its Congressional
leaders were prepared to move ahead on the avenue of the

commerce power to establish labor standards. Constitutionality
had only a negligible effect on the speed with which the bill
was enacted; and, as a result of near unanimity with regard
to the commerce power, constitutional discussion became of
minor interest.
What is of special interest is the timing of the intro
duction of S. 2475 on May 24, 1937. On that day, President
Roosevelt announced to Congress that "the time has arrived”

2
to enact a labor standards bill. The announcement was at
least two years in coming. In the famous Schechter case in
May 1935, the Supreme Court had held unconstitutional the codes
of fair competition which had been promulgated under the

3
National Industrial Recovery Act of 1933. In the eyes of
proponents, the desirability of the labor objectives of the
1 312 U.S. 100 at 116-117.

2
See below p.^7£ •
3
48 Stat. 195. Schechter Poultry Corp. v. United States,
295 U.S. 495.
I9S-197
Recovery Act was not dimmed by the Court's decision, and
the movement to reach these objectives had continued.
During the two years preceding the Schechter case,
national wage-hour and child-labor standards for a large
section of industry were achieved within the scheme of the
Recovery Act of June 1933; and,, with regard to additional
legislation to promote these objectives, Congress was
relatively inactive. But in the months preceding the passage
of the Recovery Act and immediately following the election
of Roosevelt, there was much Congressional activity. A
direct line can be traced from the thirty-hour week bill of
Senator Black, introduced on December 21, 1932, to the Act
of 1938, which also bears his nameo

For the purpose of the inquiry here, comparable situations
have been selected by picking out of the ragged web of the New
Deal's legislative a thread of legislative movement that is
related in part to Hammer v. Dagenhart and in part to the child-

labor objective. Both Black's early bill and the Fair Labor
Standards Act, for example, challenged the Dajgenhart decision
(although in the latter act other theories were also present).
The decision was not directly challenged by the Recovery Act,
however, which gave rise to related and perhaps more serious

constitutional questions but did not employ the prohibition-
of-shipment formula. Regulation of child labor, on the other

hand, was an incidental objective of the Recovery Act; but in
the early Black bill, which dealt exclusively with hours of
work, child labor was not mentioned. Other bills, statutes,
and proposals that are comparable are also noted in the
following pages. They too have been selected in the light of
the child-labor objective or in the shadow of Hammer v. Dagenhart.
B. The first bills, the N. I. R. A., the F. L. S. A
Political motives, legislative policies, and constitutional
strategies changed so frequently in emphasis during the New Deal

that it may be useful, at the outset, to look more closely at
three landmarks — the first Black-Connery bills, the National
Industrial Recovery Act, and the Fair Labor Standards Act. Nearly
identical thirty-hour week bills were introduced by Senator Hugo
Black of Alabama and Representative William Connery of Massachusetts

during the lame-duck session of Congress preceding the formal in
auguration of the New Deal.1 The bills consisted of two short sec
tions and prohibited the shipment in interstate and foreign com

merce of the products of "any mine, quarry, mill, cannery, workshop,
factory, or manufacturing establishment situated in the States in
which any person wa.s employed or permitted to work" more than five
days in any week or six hours in any day. There were no provisions
with regard to wages or child labor and no provisions for administra

tive machinery or for any flexibility or discretion. With amendments
1 S. 5267, Dec. 21, 1932, CR 72:2; 820. Connery introduced H. R.

14082 on Jan. 6, 1933 and three days later H. R. 14105, on which
hearings were held. The bill which the House Labor Committee was
to report was H. R. 14158, See CR 72:2; 1395, 1435, 3052.
For the texts of S. 5267 and H. R. 14105, see p. 1 of Hearings

cited below p .eicsr,
2 After the words "permitted to work", H. R. 14105 added: "in
the production of such article or commodity." The addition of these
words to the formulation which had been made in 1916 weakened the
House bill. The second section provided penalties, which were some
what higher in the House bill.
The House bill also prohibited the importation of foreign goods
which did not meet the bill's standards. This additional provision
reflected a disagreement between Connery and Black which was to con
tinue.
/ff
and without presidential help, Black's bill passed the Senate a

month after the new Congress had met. The bill was superseded
by a long and complex bill, supported by the Administration, which
became the National Industrial Recovery Act. In the second of

its three titles, the act authorized an appropriation of 5.3
billion dollars for a program of public works and required the
inclusion of certain labor standards in public works contracts,
loans, and grants.^ The most far-reaching part of the Act, how
ever, was Title I, part of which authorized the President under
certain conditions to approve codes of fair competition prepared

by trade or industrial groups, to prescribe such codes, or him
self to enter into agreements with persons or groups in industry.
If necessary, in order to effectuate the policy of the act, he

p
was authorized to license business enterprises. The range of
activities which could be covered was largely undefined. The in

clusion of certain conditions was specified, however; among them
— in Section 7, which set forth conditions of interest to labor
— was one clause which was to be expanded in the Fair Labor Stand
ards Act to ten pages of the Statutes at Large.
Sec. 206 stated that such contracts, loans, and grants should
provide for no convict labor, 30 hours a week for most employees,
and "just and reasonable wages." Title III contained miscellaneous
provisions.
p
Sections 3 and 4o
Sec. 7 (a) Every code of fair competition, agreement
and license approved, prescribed, or issued under this
title shall contain the following conditions: . . .
(3 ) that employers shall comply with the maximum hours
of labor, minimum rates of pay, and other conditions 1
of employment, approved or prescribed by the President.
The Act did not define any standards of wages and hours or of
child labor — that is, "other conditions." Specifications ap

peared later in the various codes and in the President's Re-
p
employment Agreement. In the first paragraph of the Agreement,
popularly known as "the blanket code," child-labor standards

higher than those of 1916 were set forth; other paragraphs defined
variable wage and hour standards.

In the Fair Labor Standards Act, some discretion was delegated
to the Administrator of a Wage and Hour Division, in collaboration
with industry committees, and to the Chief of the Children's Bureau.

But the Act itself was detailed as to coverage.4 It defined a
standard of "oppressive child labor" which was somewhat higher than
Clause (1) of sub-section (a) contained the guarantee of free

collective bargaining which was to be re-enacted in the National
Labor Relations Act of 1935. See below p . 3 0 <f
2 See Leverett S. Lyon et al., The National Recovery Administra
tion, pp. 900-902.
3
Section 4 of the Act (52 Stat. 1060) created in the Department
of Labor a Wage and Hour Division under the direction of an Ad
ministrator. Section 5 provided for industry committees. Section
8 set forth the procedure for colloboration between the Adminis
trator and the committees in issuance of wage orders higher than
the statutory minimum and with a view to "the objective of a uni
versal minimum wage of 40 cents an hour in each industry . . . ."
4 Section 13 listed exemptions including, for example, "any
employee engaged in agriculture." Exemptions also appeared else
where in the Act. For definitions, see Section 3.
«? ol
that of "the blanket code" in 1933 and with regard to hours and
w ages prescribed a ceiling which would be lowered from forty-four
to forty hours over a period of two years and a floor which would be
raised from twenty-five cents an hour to forty cents an hour over

a period of seven years„ Unlike the early Black bill, the Act al
lowed hours of work above the ceiling if compensation was paid at

one and one-half times the regular rate.'*'
The provision allowing overtime in the Act of 1938 reflected
the change of emphasis since 1932 in the motives for legislation
limiting hours. Motives continued to be mixed, but the emphasis
on recovery had given way to reform* The policy declared in the
Act of 1938 was to eliminate substandard conditions "without sub-

g~
stantially curtailing employment or earning power." The early
Black bill was expected to increase employment and, indirectly,
total purchasing power through a rigid limitation of the workweek.
Depression and mass unemployment had revived the movement for
national legislation governing labor standards; but by 1932, there
had been a shift from mainly humanitarian motives for the welfare
of children to mainly economic motives for the welfare of wage-
earners generally. Increasing the number of jobs for adults had been
a secondary motive for child-labor legislation; but in May 1933 child-
labor bills were introduced in order "to promote employment of adult

labor by preventing interstate commerce in the products of child labor.
1 Sections 6 and 7 prescribed minimum wages and maximum hours*
2 Section 2 (a).
3 H. R. 5744 and S. 1775, introduced by Kvale (F-L, Minn.) and
Shipstead (F-L, Minn.), May 22 and 26, 1933, CR 73:1: 3969, 4245.
The strongest pressure now came from organized labor rather
than from middle class reform groups; and unemployment, not
long hours, was the worst evilo In May 1937, unemployment
continued to supply one motive for the establishment of labor

1
standards, as Roosevelt’s message to Congress made evident0
However, the policy declared in the Fair Labor Standards Act
was the elimination of "labor conditions detrimental to the
maintenance of the minimum standard of living necessary for

2
health, efficiency, and general well-being of workers," In
the declaration of policy of the N.I.R.A., on the other hand,

eleven objectives appeared, including: ". . . to reduce and
3
relieve unemployment, to improve standards of labor • . • <>"
But as the name of the 1933 act indicates, the Act was designed
mainly to achieve recovery,,

At times, both supporters and opponents found motives to
be constitutionally significant. This was especially true of
the recovery motive when emergency was offered as justification

for it. The Black-Connery bills were intended mainly to meet
emergency; but they contained no emergency justification and no
time limitation. The Recovery Act declared the existence of a

national emergency and provided that administrative agencies
established by the President to effectuate the policy of
Title I should expire after two years or dooner under certain
conditions and that the "rigorous licensing power," which

the President had asked and had been granted, was
1 CR 75:1: 4960-4961. 2 Section 2 (a).

3
Section 1.
limited to one year.-*- The Fair Labor Standards Act contained no
time limitation and said nothing of emergency. "Except perhaps

for the Social Security Act," said President Roosevelt, "it is the
2
most far-sighted program for the benefit of workers ever adopted."
Aside from the Recovery Act's reference to national emergency
and the inclusion of the general welfare phrase in the Act's state
ment of objectives, the constitutional basis for all three landmarks
was the commerce power. As indicated earlier, the Black-Connery

bills were patterned exclusively after the 1916 Child-Labor Act;
and the same formula was exclusively relied upon in the Fair Labor
Standards Act with regard to child labor0 In each instance, the
Dagenhart decision was directly challenged. The Act of 1938 applied
the formula also to wage and hour standards. For good measure,
employers subject to the act were prohibited from employing under
substandard conditions persons "engaged in commerce or in the pro
duction of goods for commerce."3 Otherwise, the Act found, the

free flow of goods in commerce was burdened, orderly and fair mar
1 Sections 1, 2 (a), 4 (b). "Rigorous" is the President's word.

For his request, see below p
Although the Act itself was a temporary one, it was spoken
of as a permanent departure from planlessness. Thus, President
Roosevelt, when he signed the bill, described it as "a supreme
effort to stabilize for all time the many factors which make for
the prosperity of the nation and the preservation of American
standards." Quoted in Lyon, et. al., on. cit., p. 3.
^ Radio address on June 24, 1938. CR 75:3: Appendix 3134.
3 Sections 6 (a), 7 (a).
keting was interfered with, and competition in commerce was unfair .■*■
Thus was invoked a stream of constitutional interpretation concern
ing the affect of intrastate activities on interstate commerce which
went back to the Interstate Commerce Act of 1887 and the Sherman Act
of 1890. Parts of the Recovery Act, on the other hand, seemed to
apply even to intrastate commerce which did not affect interstate
commerce. The Act had been passed after a call from President
Roosevelt for "a great cooperative movement throughout all industry."
The Act itself declared one purpose to be "co-operative action among
trade groups"; and in the sub-section authorizing codes of fair com
petition, industry was referred to without limitation.^ Legal co
ercion, however, was adequately provided for in the Act but only
with regard to transactions "in or affecting interstate or foreign
commerce.
■*■ See Section 2 (a).

g
For Roosevelt's message, see below p. < £ ¥ 6 .
Chief Justice Hughes observed in the Schechter case: "Although
the validity of the codes . . . rests upon the commerce clause of
the Constitution, Section 3 (a) is not in terms limited to inter
state and foreign commerce. From the generality of its terms, and
from the argument of the Government at the bar, it would appear that
Section 3 (a) was designed to authorize codes without that limitation.
295 U. S. 495 at 542.
5 Sections 3 (b) (f), 4 (b).
<£o&-
II. gram November 1932: the Election of Roosevelt

To May 1935: the Schechter Case
A. The Black-Connery bills
1. Legislative history
Following the Democratic victory in November 1932, the old
Congress — including 158 lame ducks — met once again. There
was a marking of time during the months before the New Deal was
officially to begin; but in committee discussion of the questions
which the new Congress was to face, much groundwork was laid.^
Hearings on Black*s thirty-hour week bill were held by a sub
committee which met on twenty-one mornings and one afternoon in
January and February and heard testimony from fifty-four persons,
first of whom was William Green of the American Federation of
Labor.2 The House Labor Committee, of which Connery was chairman,
held hearings on nine mornings and reported the Connery bill on
February 10, 1933.® The Black bill was not reported; but a week
1 See E. Pendleton Herring, "Second Session of the Seventy-

second Congress," 27 American Political Science Review 404, 422.
2 "Thirty-Hour Work Week," Hearings before a subcommittee of the

Cnmmlt.tee on the Judiciary, United SFates Senate, on S. 52*57. 72nd
Cong., 2nd Sess., 2 pts., vii-641 pp., Jan. 5 -Feb. 11, 1933.
Eighteen of the witnesses — including Green and, representing
the National Association of Manufacturers, James Query — appeared
also before the House Labor Committee.
3 "Six-Hour Day - Five-Day Week;" Hearings before the Committee

on Labor. House of Representatives. on H.R. 14105. 72nd Cong.,
2nd Sess., iii-2SS’ pp., Jan. 16-30, 1933. House Report No. 1999.
72nd Cong., 2nd Sess., Feb. 10, 1933 (pp. 1-5). The report is
discussed below p. a i o -a H
later, Senator Black took the floor for about an hour to discuss
the bill and announced that it would be "urged at the earliest
possible moment•
Black confined his remarks on the floor to policy and post
poned discussion of constitutionality.2 Constitutionality had,
however, pervaded the hearings; and committee members, particularly
Senator Norris, chairman of the sub commit tee, had indicated con-
3
cern about acting constitutionally. That the bill ran counter to
the Dagenhart decision was generally admitted, but hope and ex
pectation were expressed that the Supreme Court would not stand
in the way.4 "Times have changed," said Representative Connery,

5
"and . . . we are facing a real crisis in the United States."
No one suggested that the crisis might pass quickly and therefore
the Court could be ignored; and only one witness remarked that
the justices were "growing old" and some could be expected to
retire. Representative Fiorello LaGuardia may have expressed a
common sentiment, however, when he said that "give President
Roosevelt the opportunity to appoint two men of penetrating and
1 See CR 72 ;2; 4304-4313.
2 As soon as Black arose to speak, Borah (R, Idaho) asked if

"the legal phase" was to be discussed. CR 72:2; 4304. Borah
was a member of the sub-committee but had been absent throughout
the hearings.
For Norris' concern about meeting the constitutional doubts

"that may exist in the minds of honest legislators," see, for ex
ample, Hearings . . . on S. 5267. pp. 57, 253 ff., 290.
4 See, for example, ibid., pp. 3-5, 57, 254-257; Hearings . . .

H.R. 14105. 3, 47-48, 113.
5 Hearings . . . on H.R. 14105. p. 51.
broad vision to that court” and the proper interpretation - that
of Holmes, Brandeis, and Stone - would be had.*
Whether Black's bill had the support of the president-elect
was not known* The Democratic platform had advocated “the spread
of employment by a substantial reduction in the hours of labor”
and "the encouragement of the shorter week by applying that prin
ciple in Government service." Nothing was said about legislation

g
to accomplish the objective directly. Two weeks before the in
auguration, Black, on the floor of the Senate, quoted Roosevelt's
speech of acceptance — "we must take definite steps to shorten
the working day and the working week" — and implied that Roose
velt was at least sympathetic to the thirty-hour week bill.®
Roosevelt was, indeed, sympathetic to any steps which would lead
to recovery. His inaugural address demonstrated that he was
ready to act and was not troubled with constitutional doubts.
When the new Congress met in special session, Black and Connery
again introduced their bills;4 but the bills were relegated to
the background during the first weeks of the New Deal while Con
gress in response to presidential leadership devoted time to meas
ures of a higher priority.
^ P* 243. LaGuardia, who appeared as a witness, expressed

confidence that the Dagenhart case would be "wiped out." L o c . cit.
^ CR 72j1j 14735. There was no reference to child labor but

elsewhere in the platform the following statement was made: "We
advocate continuous responsibility of Government for human welfare $
especially for the protection of children." CR 72:1: 14736.
3 CR 72:2: 4305.
4 S. 158, H.R. 2867, March 10, 1933, CR 73:1: 116, 173.
4 off
In his Inaugural address on March 4, 1933, R 0osevelt r e
peatedly promised action to meet an emergency which he compared
to that of war. The first task was re-employment, to be accom
plished "in part by direct recruiting by the Government itself."
Specifications were postponed for a later date. What was clear
at the moment was the premise of "a disciplined attack upon our
common problems" to be accomplished within the Constitution.
"Our Constitution is so simple and practical," the President said,
"that it is possible always to meet extraordinary needs by changes
in emphasis and arrangement without loss of essential form."*-
Within three weeks - after recommending banking and economy legis
lation, the legalization of the sale of beer, and an agricultural
relief program - Roosevelt made "a direct attack" on unemployment.
He proposed that Congress appropriate money for a broad program
of public employment by the Federal and State governments. This

©
was only one step, he said, and "not a panacea."
Meanwhile, the Senate Judiciary Committee and the House Labor
Committee had held no hearings and taken no action on the Black
and Connery bills. Within the month, however, both bills were
3
amended and reported. Before the Administration was prepared
to present any legislation of its own, designed to increase em
ployment or purchasing power through the setting of labor standards,
1 CR 73:1: 5-6.
2 See Roosevelt's message of March 21, 1933, CR 73:1: 650. The

first two weeks of the New Deal are summarized in the New York
Times. March 19, 1933, p. 2.
3 See below pp.
i
I
<*0?
the Senate moved rapidly without presidential leadership and, im
the course of one week, the Black bill was amended again and
passed.^ The Senate had outdistanced the Administration, but
the President was stimulated to act, A few days later, Roosevelt
designated Secretary of Labor Perkins and Secretary of Commerce
Roper to study the bill and prepare recommendations for any neces-
2
sary changes. Following a meeting of the cabinet, Perkins and
Roper announced their endorsement of the principle of the bill
and conferred with Senator Black, who announced that he had no

2
objections to revisions designed to make the bill more flexible.
Ihe bill had reached the high point of its fortune, and passage
in some form seemed probable. But as the Administration proceeded
with its study, the idea of a simple and rigid bill prohibiting
shipment declined; and the idea of a flexible and comprehensive
scheme, which was to be the National Industrial Recovery Act,
arose. This juncture is an appropriate one at which to stop,
therefore, to look more closely at the committee reports on the
thirty-hour week bills and at the Senate debate.
1 April 6, 1933, CR 73:1:1350.
2 New York Times. April 12, 1933, p. 2.
3 Loc. cit.
il
2. The House report
The report which Connery's committee had submitted on Feb

ruary 10, 1933, only a few weeks before the end of the old Con
gress, was a revealiDg hodge-podge in five pages of the historical,
economic, and political reasoning which underlay the support for
a shorter work week.’*' This report was re-submitted to the New
2
House on April 4, Two new sections had been added to the orig-
3
inal bill, one limiting its effect to two years. Thus the bill
now appeared on its face, like much of the early New Deal legis
lation, to be an emergency measure. The limitation may have
been intended to make the bill more palatable to those who pro
fessed constitutional doubts, but the report itself did not argue
that the limitation had strengthened the bill's constitutionality.
In a brief explanation added to the body of the original report,
which remained unchanged, the Committee stated its belief that
4
the measure would prove its worth as a permanent policy.
Only three sentences of the report dealt with the constitu
tional problem; the remainder, unlike the Senate report, lacked
the frequent references to interstate commerce which gave the
Senate report a constitutional tone. At least on the surface,
See above p. 4 os ' »fn. -3.

^ House Report No, 24, 73rd Cong,, 1st Sess., April 4, 1933,
(pp. 1-5).
3 The Committee reported H,R. 4557, which had been introduced
by Connery on the preceding day. CR 73:1: 1156. Section 3 autho
rized the Secretary of Labor to exempt articles of a perishable
nature. Section 4 limited the law to two years. H.R. No. 24. p. 5.
4 5*oe» cit. A brief explanation of section 3 was also added.
//
the House report was unconcerned with constitutionality* Perhaps

the very concentration on policy arguments indicated a basic con
viction that national legislation designed to meet national crisis
was constitutional. At any rate, the committee in referring to
the Supreme Court, expressed a belief " . . . that the reasons ad
vanced for the enactment of this legislation will appeal to the
members of that body . . . .m1 A summary of those reasons is of
interest at this point, not because it is important to judge their
validity but to suggest the depth and range of argument which was
summoned to support a bill directly opposed to the principle of
the Dagenhart case.
1 Ibid.. P» 2 *
**7<2,
The report summarized the history since the eighteenth cen
tury of the movement f o r shorter hours and the motives which had
impelled that movement — motives of health, safety, social and
family welfare, fair distribution of employment, and increased
efficiency* Now, industrial depression gave rise to new motives*
Productive capacity exceeded consuming capacity* More than
1 1 ,000,000 industrial workers were unemployed; purchasing power
had dwindled; and there were insufficient markets for the pro
ducts of the factory and the farm* Millions were living on public
and private charity, and thousands of banks and credit institu
tions which depended on the well-being of industrial and agricul
tural workers were facing failure* Either work or a dole had to
be provided* The Committee's answer was the bill for a thirty-
hour week. It would automatically open jobs for most of those
who were unemployed and would release purchasing power which would
lead to the employment of others* Finally, b y eliminating the
suffering and unrest of more than one-third of the population,
the bill would "preserve our present form of government from
shocks which may result in disaster•" "To be effective" the shor
ter week had to be national in order to protect the vast majority
of employees who, realizing the alternatives, had already reduced
hours* The report said nothing about the desirability or the con
stitutionality of establishing minimum wage standards* It did
argue that shorter hours meant increased efficiency, higher wages
for those already employed, and thus the retention of their pur
chasing power.
These reasons, which the Committee believed would appeal
to the Supreme Court, were presented in a remarkably disconnected
and repetitive fashion, as if the report had been put together
with scissors and paste. Inserted among the paragraphs was a
nod to constitutionality, three sentences which seemed to record
a stream of consciousness in response to "constitutionality,1'
The responses could be translated crudely as follows: opponents
argue constitutionality — they should be ignored because the
question is for the Court — anyway the opponents are hypocrites
— certainly the question is for the Court — we think the Court
will realize the bill is necessary — anyway we do think the bill
is constitutional. O p , as the report said:
The enactment of this legislation has been op

posed on the grounds of possible unconstitutionality.
The committee believes that the members of the

Supreme Court can decide the question of constitu
tionality and are mindful of the fact that almost all
progressive and forward looking legislation for the
benefit of the masses of our people has been opposed
on the same grounds# We are not hesitant to leave
the question of constitutionality to the members of
the Supreme Court, believing that the reasons advanced
for the enactment of this legislation will appeal to
the members of that body and further believing that
the constitutional power given to the Congress to re
gulate interstate commerce permits the enactmait of
this legislation within the powers of the Congress,
Loc, cit.
e?/ Y
3. The Senate report
The bill reported to the Senate had a preamble which stressed

"emergency11 and, like the House bill, a two-year limitation; but
the report did not argue that emergency made the bill constitu
tional.1 The report did, however, differ significantly in tone
from the report submitted to the House. The Senate report began:
This bill is intended to revive languishing interstate

commerce in the products of mines, factories, and
manufacturing establishments throughout the nation.
Today interstate commerce is strangled and almost
paralyzed by reason of an absence of purchasing power • • • •
Within the frame of reference of these and similar phrases, policy

arguments for the bill were stated.
1 Senate Report No. 14. 73rd Cong., 1st Sess., March 30, 1933
(pp. 1-3).
The committee voted 11 to 3 to report the bill. Senator
Borah, in addition to two other Republicans, voted for reporting
the bill but, according to the New York Times, "conditionally . . .
withholding the right to oppose the bill on the floor if he con
sidered it unconstitutional." New York Times, March 31, 1933, p. 3.
Senator Black was a member of both the Judiciary Committee
and the Committee on Education and Labor when, on December 21,
1932, he asked that his bill be referred to the Judiciary Com
mittee "by reason of the fact that certain legal questions will
be raised." CR 72:2: 820. Black’s bill was again referred to
the Judiciary Committee in March 1933 and also in January 1935,
at the beginning of the second New Deal Congress, when Black was
no longer a member of the committee. Following the Schechter
case and the Democratic victory at the polls, Black again intro
duced a thirty-hour week bill at the beginning of the third New
Deal Congress. On this occasion, the bill was referred to Educa
tion and Labor, of which Black was chairman.
iL
I
-2 IS'
Half of the report, which was a little over two pages in

length, faced the constitutional question directly. Without cit
ing any judicial precedents, the committee stated that "under all
the decisions" Congress could act "to protect the people from
that kind of commerce that produces widespread human misery, des
titution, sickness and want." Congressional power and social
policy were referred to in the language of "rights" — "the right
to regulate" interstate commerce and "the right of the people to
receive the benefits of interstate commerce." Those benefits had
become so extensive that national well-being depended upon their
preservation and, therefore, upon the bill. The 1916 child-labor
act, on the other hand, affected only a small percentage of work
ers. That act and the bill were distinguished, in other words,
with regard to their national importance. With regard to the con
stitutional justification for the bill, the stress on the bill's
vital importance seemed to underline the honesty of the interstate-
commerce approach; depreciating the importance of the child-labor
act, however, led the Committee to denigrate the real interstate-
commerce justification for that act. It had been passed, said the
report, ". . . i n order to prevent working practices within their
State, thought by Congress to be detrimental to those individual
children working within the States."'1' Ehdoubtedly there was an
extremely wide difference in coverage between the 1916 act and the
bill. Was the Committee maintaining, therefore, that a bill setting
^ Whereas, "this bill has a broader base and a broader object*

It is directed toward interstate commerce in its larger aspect.
It affects . . . millions of those engaged in interstate commerce."
S. Rent. 14. 73rd Cong., p. 2.
<4/6
an hours standard for factories whose products entered interstate
commerce was less concerned with "a purely local matter" (in the
words of the Dagerihart case) than an act setting a child labor
standard for the same factories? The necessity of distinguishing
cases had produced distortion*
Since the 1916 act was distinguished, there was no necessity
to assert that the minority opinion of the Dagenhart case had
become accepted by the Court. The report concluded? “This bill,
therefore, it is believed comes within the constitutional inter**
pretation both of the majority and the minority of the Supreme
Court in the child labor case." Nevertheless, the following state
ments followed immediately:
Attention is called to the fact, however, that the

child labor case was decided by a divided court of 5 to 4*
Conditions today are different tofsic] conditions that
existed when that case was decided*'âws must be inter
preted to meet conditions existing when the law is inter
preted*
Our Constitution has been interpreted from time to

time to meet new situations and conditions that could not
have been foreseen by the writers of that great document* -
Its interpretation has made it possible to adjust laws
written under its terms to fit alike the oxcart and the
aeroplane; the hand loom and the swift spinning of modern
factories*
Today America faces a sad reality. Hungry and des

pairing men and women have a right to demand that their
representatives look at the m o d e m situation with modern
eyes. If change is needed to cure evils growing out of
old practices, change must come.1
Thus, in this indirect way, the Committee admitted that per
haps the bill would not satisfy a Court that followed the majority
in the child-labor case* Conditions had changed, but had they
1 Ibid*, pp. 2-3.
‘7
changed so much that such a Court could be expected to uphold the

Black bill without overruling the child-labor case? Apparently
not. There was evident, however, an expectation, or hope, that
conditions had changed enough to swing a majority of the judges
behind the dissent. Yet, although Congress was urged to act with
constitutional boldness, the report did not repudiate the child-
labor decision, nor did it clearly endorse the dissenting opinion.'*-
1
Although the preamble included the word -emergency" and al
though changed conditions were discussed in the report, the report
did not argue that the bill was constitutional because there was
an emergency. Nor did the report give reasons of constitution
ality for the addition of a two-year limitation to the bill. Bxe
report said simply that the bill proposed "to try" shorter hours.
4. The Senate debate and passage
a. In general
Neither the President nor the Secretary of Labor had en

dorsed the bill as it stood when it reached the Senate floor on
April 3, 1933.1 Joseph T. Robinson, the majority's floor leader,
offered an amendment which he thought the President would find,
acceptable — increasing the maximum hours from 30 to 36 a week
and allowing eight hours a day ~ but the majority favored action
according to Black's version and defeated the amendment by a vote
g
of 41 to 48# The final vote, after several amendments had been
added to the bill, was 53 to 30# Nine Republicans and three in
dependent senators joined 41 Democrats in voting Yea. Ten Demo
crats, all except two from the South, voted Nay.3
See the remarks of Trammell (D, Fla.), CR 1784.

Note: CR in this section will refer to the Congressional Record.
73rd Cong., 1st Sess.
2 CR 1333. One of Black's Republican supporters, Hiram Johnson
of California, opposed the Robinson amendment because it "entirely
metamorphizes [sic] the bill." "I am in sympathy with the bill as
originally presented," he said, "prepared and ready, desirous and
enthusiastic in that desire, to vote for it." CR 1292-1293. Black
opposed the amendment but thought that either it or the bill "marks
a milestone." CR 1295.
3 CR 1350. The Republicans who voted Yea were all from the mid
west or west — Vandenberg and Couzehs (Mich.), Robinson (Ind.),
Frazier and Nye (N.D.), Schall (Minn.), Capper (Kans.), Carey (Wyo.)f
and Johnson (Cal.). Cutting (N.M.) was absent but in favor of th®
bill. The independent senators for the bill were LaFollette (Prog.,
Wis.), Shipstead (F-L, Minn.), and Norris (Ind. Rep., Neb.). The
two Democrats who were not from the South were Bulkley (Ohio) and
Coolidge (Mass•) •
In the debate which spread over four days, there was wide
interest — about forty senators took the floor; but there was
little discussion of the economic theory of the bill and little
sustained or well-defined discussion of constitutionality. On
the other hand, there was much talk of constitutionality and much
preoccupation with the coverage of the bill. Senator Black an
nounced in his opening statement that he would discuss "the policy
involved and its constitutional features" and Invited those who
had legal questions in mind to remain in the chamber.1 The first
questions he was asked, however, were related not to constitu-

p
tlonality but to canneries. Toward the end of the second day,
discussion seemed to be near an end — the bill had been "very
exhaustively discussed,” said Long of Louisiana; and consent was

3
granted for a limitation of debate.
The leading spokesman for the bill expressed a sense of ur
gency and a conviction that the bill was vitally important. For
Black, the bill was more than an emergency measure, "I want it to
be the permanent policy of this Elation", he said.4 The temper of
the majority, however, was more closely expressed by Senator David
Walsh of Massachusetts, who said of the bills
It is an emergency measure. It is limited to 2

years. It is somewhat experimental, but everything we
are doing today is more or less experimental. It may
not be workable. It may raise serious constitutional =
questions. It may be necessary to make changes • • • »
1 CR 1113. 2 See CR 1113-1115.
3 CR 1193-1194. Beginning the following day, debate was to

be limited to thirty minutes for each senator on the bill and
fifteen minutes on each amendment.
4 CR 1183. 5 CR 1343.
1
■*<*0
But jobs had to be provided, Walsh concluded, Black himself recog
nized that the inclusion of a two-year limitation in the bill might
be strategically valuable when he said:
, , . if any advantage is to be obtained in the way

of votes in the Senate to pass the bill, or if any
advantage is to be obtained in the possible uphold
ing of the proposed statute, then, so far as I am
concerned, I would rather have a bill with a 2-year
limitation than no bill at all,1
It is doubtful that the addition of the two-year limitation
resulted in any additional votes for the bill. The limitation
itself did not appear, during the debate, to be an important reason
for supporting the bill although it may have made individual deci
sions as to policy easier to reach. Perhaps a decision as to con
stitutionality also became easier to reach. Members may have felt
that limiting the duration of the act was evidence that the major
ity was responding to emergency conditions in good faith. The de
bates do not suggest, however, that anyone faced indecision which
was resolved by this consideration. The highest constitutional
hurdle was the Dagenhart precedent. Once over this, one could be
•unconcerned about the presence or absence of an emergency provision.
Thus, McKellar, who voted for the bill, was prepared to omit the
limitation in order to confront the Court a second time with the

g
question decided in the Dagenhart case. That the Court should
decide the question "squarely"3 was so important to one opponent,
^-CRllSS. 2 CR 1186.
3 CR 1183.
**I
Borah, who voted against the bill, that he announced he would
vote for the bill if the emergency provision were stricken out.'*’
That provision, he said, was the bill's "most objectionable fea
ture."2
Borah was a maverick among the opponents. His main attack
was a constitutional one but directed against the emergency limit -
ation only. Otherwise, he claimed to be "in thorough sympathy
with the principle" of the bill and ready to re-submit the ques-
3
tion of the Dagenhart case to the Court. His fellow opponents
appeared unconcerned about the limitation and expressed, in vari
ous degrees, opposition to the bill on its merits and acceptance
of the Dagenhart decision as settled law. With regard to con

stitutionality, they and those who supported the bill "talked past
one another."4 On all sides there appeared to be little necessity
to re-explore the commerce power. Two lines of interpretation
had been neatly packaged in the majority and the minority opinions
of the Dagenhart case. Once one had made a choice between them,
the only constitutional problsn which remained was how to justify
action or inaction based upon that choice. Various formulations
were presented, mainly with reference to Borah's view that a 5-to-4
decision left the constitutional question "open." But even on the
surface of the debate it was evident that this problem was secondary
to the question of policy. Only Borah, among the opponents, seemed
1 CR1184. ® CR 1179,
3 CR 1118.
4 Karl Mannheim, quoted in Charles A. and Mary R. Beard,
America in Midpassage, 1939, p. 355.
to engage in a meeting of minds with the proponents on a con
stitutional question — the significance of emergency; hut even
here, the meeting was a shadowy one.
From the beginning of the debate, three groups were visible —
first, senators who were interested in getting the bill through;
second, supporters and opponents, both, who were interested mainly
in getting amendments added to the bill; third, senators who were
categorically against the bill. Black and his followers in the
first group were prepared to state their constitutional position
for the sake of the record. There was even some anxiety about
doing this and discussion among allies as to the proper way in
which to put the constitutional case. The second group — includ
ing, for example, Vanderiberg, a Republican who voted for the bill
and Hatfield, a Republican who opposed it — neither bore respons

ibility for defending the bill's constitutionality nor could they
afford the luxury of constitutional digression. In the third
group were some half-dozen senators who were generally so hostile
to the bill that they were beyond the reach of constitutional ar
gument, On their own level, however, constitutional language was
used. Once the bill had reached the Senate floor, the ranks of
these groups were already formed and remained unchanged during
the debate. The debate, however, is worth additional examination
because it provides an illustration of Congressional argument at
a time of rapid legislative movement in the face of a judicial
barrier.
I
#?at3
b. The opponents
Opponents favoring amendments
Nearly a dozen opponents took the floor to offer amendments
to the bill or to speak In favor of such amendments. Almost all
of these amendments, all of which were defeated, were for exemp
tions wider than those already provided for One amendment, sub
mitted by Senator Hatfield, Republican of West Virginia, would

g
have applied the standards of the bill to foreign-made goods.
The proposal enjoyed bi-partisan support; but following a brief
statement by Black, who described it as a departure from the ef
forts which were being made to improve trade relations, it was de-
feated by the narrow margin of 39 to 41.
The pressure for protection was to prove responsible for de
laying transmittal of the bill to the House for eleven days after
passage in the Senate. Senator Trammell of Florida, on the day
after he had voted for passage, introduced a motion to reconsider
the vote in order to allow for more consideration of a protection
ist amendment.4 Not until April 17, after occasional and brief
5
discussion was a vote on the motion taken. During the interim
there had been, said Black, "a deliberate undercover effort" to
delay action while 150 to 200 telegrams a day were reaching senators
^ Amendments were proposed by Goldsborough (R, Md.), CR 1177-1178;

Fletcher (D, Fla.), CR 1194, 1333-1334; Connally (D, Tex.), who was
paired and did not announce his position, CR 1334-1339; Metcalf
(R, R.I.), CR 1343-1344; Reed (R, Penn.), CR 1348-1349; and Hat
field, noted below in the text. Senator Black opposed some of
these amendments on the ground that their objective was already
included in the bill or in some amendment already adopted.
2 CR 1339. 3 CR 1342
4 CR 1403 5 CR 1818. See also CR

1424-1426, 1460-1462, 1471-1473,
1537-1538, 1546-1547, 1659,
1780-1788, 1806, 1808-1812.
and to build up "a big backfire" to prevent action in the House#1
Trammell's motion was defeated by a vote not significantly dif-

2
ferent from the vote on passage of the bill.
Discussion of this motion and of proposed amendments to the
bill contained no talk of constitutionality. Like constitution
ality, however, as well as general policy, the merits of amend
ment provided a ground of opposition to the bill. Indeed, for
those senators, with one exception, who supported some amendment
unsuccessfully and voted against final passage, these merits were
the only ground of opposition which was evident during the debate.
To stand on this ground was comparatively easy, especially when
the interests to be served were confused. Thus, Hatfield could

read to the Senate a telegram from Matthew Woll of the American
3
Federation of Labor in support of a protectionist amendment.
Vandenberg, also, who had expressed "complete harmony with the

general philosophy of action" of Black and had voted for passage
of the bill, spoke of that amendment and the support of Mr# Woll
to justify his vote for Trammell's motion, an action which Black
warned no "real friend" of the bill could take.4
1 CR 1547, 1782. Trammell himself was not blamed by Black for

the delay.
2 The vote for passage had been 53 to 30; the vote to reconsider
was 31 to 52. Vandenberg, Carey, and Schall (Republicans) and
George (D, Ga.), and Trammell voted for passage and also for re
consideration. Borah and Russell (D, Ga.) voted against passage
and also against reconsideration.
3 CR 1341.
4 CR 1126, 1810-1811
Categorical opponents
Only one among the opponents who attempted to amend the
bill — David Reed, the Republican senator from Pennsylvania —
spoke also of constitutionality. These opponents left much un
said if Reed was typical. Reed made a wholesale attack on policy
and constitutionality. Five other opponents also spoke at some
length — Hastings and Walcott, Republicans of Delaware and Conn
ecticut, and three Democrats, Bailey of North Carolina, Gore of
Oklahoma, and Logan of Kentucky. Walcott was not categorically
opposed to national action or to the bill, nor did he speak of
constitutionality. The others were beyond the reach of amendment.
What constitutional forms did their opposition take?
Logan doubted the wisdom of the bill; but even if the bill
was necessary and useful, he said, he would oppose it "solely on
constitutional grounds. His sense of constitutional obligation
was so pure that Logan is almost a unique figure who may be left
for examination later. On the other hand, the opposition of Reed ,
Hastings, and Bailey to the general policy of the bill was so ex
treme that it cannot easily, as in the case of Logan, be disen
tangled from constitutional language. Hastings spoke with compar
ative moderation although he looked at the bill's method with "a
great deal of a l a r m . T o Bailey, the bill appeared as a "monstrous
evil"; its "whole proposition" was "abhorrent to sound economics
and to the character of our Republic."3 Reed, also, left little
room for argument:
1 CR 1287-1888. 2 See CR 1325-1326.
3 CR 1377.
If the Senator wants to know my frank reason for opposing
the hill, in addition to its clear unconstitutionality,
which would make it our duty to vote against it, accord
ing to m y view, I think it is basically unsound, that it
is sentimentalism run mad. That is my view of his bill.1
Gore, in his turn, found the bill so repugnant that he bothered
to say little about "the constitutional point” although he in
sisted that he did not ”walve" it.2 The first time he arose to
speak, Gore said merely the following, after an introductory re
mark:
I think we ought to amend this bill with a provision

that it be cited as 'the Black Act,' and I say that
without any reflection upon its deserving author, whom
I hold in the highest esteem*
Mir. President, the black death, I believe, is the most

devastating plague that ever scourged the human race.
Yet destructive as it was the black death was not so
bad as it might have been. It destroyed only about 40
or 50 percent of the people.3
Reed, Hastings, and Bailey, unlike Gore, elaborated on their
opposition to the bill's policy. Opposition to action by the
national government was expressed in the name of States' rights,
and opposition to the action itself was in the name of individual
liberty. With reference to States' rights, Reed did not speak
in the grand, rhetorical style. Instead, he used the language of
the child-labor case and decried the ”pretended exercise” of the
1 CR 1191. See below p . o W f n . J , with regard to Reed's stand

on policy.
2 CR 1296.
® CR 1290. See CR 1296-1297 for Gore's remarks about "economic

forces" and his opposition to governmental regulation.
Gore's crude pun led Black to reply to "my good friend from
Oklahoma." "It would, of course, be possible for other puns to be
drawn upon other names," said Black to Gore. Black added, "Thank
God, I am not living in my own mind i n the Elizabethan era . . . ."
CR 1295.
I
commerce power to regulate "production."^- Hastings spoke more
generally of "State rights" and the necessity to guard them "with
great jealousy.1,2 More specifically than Reed, he extolled the
majority opinion in the first child-labor case not merely because
it was a majority opinion and had settled the law but also because
it had shut the door to minimum-wage, price-fixing, and similar
legislation. Hastings m a y have had in mind B l a c k ’s statement that
the Judiciary Committee had omitted a minimum-wage provision be
cause of the Supreme Court's rulings when, toward the end of his
remarks, Hastings said:
I think the present condition of the country, the

temper of the people of the country, and the reflection
of that temper in the Congress, show that but for the
prohibitions in the Constitution we would right now be
enacting legislation that would probably bring us to „
greater distress than we have ever experienced before.0
Bailey's adherence to States' rights was, like that of Reed and

4
Hastings, not divorced from "the economic principle involved."
The bill would erect "a centralized socialism that . . . inevit
ably would predicate that communism which we all profess to abhor."
But Bailey spoke of States' rights on the level of grand policy;
and — in the face of "the proposed destruction" of the "funda
mental rights and functions" of the State of North Carolina - - h e
1 CR 1281-1888.
2 For Hastings' remarks, see CR 1325-1327.
® CR 1326. "That which we would adopt today, if it were not

for the Constitution," said Hastings later, "we would not think o f
adopting after the excitement of the time had passed and sober
second thought had fully asserted itself." L o c . cit. For Black's
statement, see below p.
4 For Bailey's remarks, see CR 1327-1329.
made no references to the Court, to Judicial precedents, or to
the child-labor case. "Down in my heart," he said, " . . . while
I hope the Republic may last, I do hope and I do pray that, whe
ther the Republic lasts or the Union lasts, the Commonwealth of
North Carolina will last . . . ." But the fate of North Carolina
was not, it appeared, to be wholly divorced from the fate of the
Constitution and the Republic. In his peroration, Bailey said:
I have some faith in the old ship of state. I believe

solemnly that it will be better to anchor the American
Republic to the Constitution and ride the storm out;
and if per adventure it should go down, at least we
would have gone down in a decent ship.
Like States' rights, individual liberty was thought of
categorically, and it was defended with almost no citation of
Judicial precedent. The Union was created, said Bailey, to pre
serve "the right of personal liberty," which included liberty of
contract.-*■ Limiting one's liberty to work as long as he pleased
was "offensive" to Senator Fess, a Republican of Ohio who spoke
briefly on the bill; and Hastings stated that the bill would be
O
disadvantageous mainly to employees. Reed, on the other hand,
was exceptional in supplying "authority" for his assertion that
hours of labor could not be limited constitutionally. "I cite,"

he said, referring to Lochner v. New York, decided in 1905, "the
familiar New York Bakeshop case."3 Black exclaimed, "0 Mr. Presi
dent 1"^ Excluding discussion with Borah, this was the only com
ment which Black made during the opposition's constitutional
argument.
1 CR 1327-1328. 2 CR 1338, 1326.
3 CR 1281. Like Hastings, Reed claimed that the bill would mean
I
<4<*f
(The legislator's duty
The opponents whose style of argument has been set forth
above were in agreement with Borah's statement that if the Dagen
hart decision stood, the bill was "undoubtedly" unconstitutional*
Had that decision settled the law? According to Borah, who had
been one of the leading spokesmen in 1916 in behalf of the con
stitutionality of the first child-labor act, the Court's 5-to-4
decision was final as to litigants but had left the question
"open" for legislators* For policy makers, a 5-to-4 decision
was "an unsatisfactory guide*"1
Therefore, following the example of Abraham Lincoln,

I have always felt that it is a justifiable position
to take that when a proposition seems unsettled,
legislators • • • ought to have some freedom of
judgment in the matter*2
Borah himself was prepared to resubmit the question to the Court

3
and thought that the Court might rule favorably. Whether he
lowered wages and was unfair to the laboring man* He himself,

said Reed, was a strong believer in the "share the work" movement
CR 1281-1282. Reed's tone and reputation was referred to by
Clark (D, Mo.) as follows: " . . . naturally I was moved to the
point of tears on yesterday . . . by the pathetic eloquence of
the Senator from Pennsylvania when in moving accents, he depicted
his heartbreaking solicitude for the welfare of the laboring class
and the farmers — eloquence which the distinquished Senator has
too often exercised in the advocacy of tariff iniquities, the de
fense of income-tax refunds to malefactors of great wealth, and
the emasculation of the laws against trusts and monopolies*"
CR 1330.
4 CR 1281.
1 CR 1183. 2 CR 1186.
3 CR 1183-1184.
A Jo
hoped that the Court would do so was not clear during the debate,
Borah agreed that there were "vast possibilitiesM if Congress
could exclude ordinary commodities from interstate commerced But
apparently this situation was bad not because the possibilities

p
were unwise but because they were legally uncertain.
The other opponents were clearly satisfied with the Court*s
policy, and they were satisfied to regard the constitutional law
as settled* Reed had "the utmost confidence that the Supreme
Court as it stands today" would not uphold the bill. To assume
that the present justices would ignore Hammer v. Dagenhart would
be to lack respect for justices for whom Reed had "the highest
respect," "It is just as important," said Reed, "that the law
be settled as it is important that it should be settled right,"®
Hastings illustrated the force of a majority opinion b y means of
analogy. In all federal courts the majority opinion was "absolutely
controlling," however "interesting" the minority opinion might
be. "I do not see," he said, "how a legislator can ignore such
opinions any more than a district or circuit court judge may
1 CR 1186.
® Because the "vast possibilities" were giving rise to questions

every day, Borah wanted the Court , finally to settle what
our powers are under the interstate commerce clause," Therefore,
he said, he would support the bill only if there were no two-year
limitation so that the constitutional question could be "squarely
met." If the "final judgment" of the Court was that ordinary com
modities could not be excluded from interstate commerce, said
Borah, Congress could either accept the ruling or amend the Con
stitution, CR 1183, 1186. Borah did not indicate whether he
would consider a 6-io-3 or a 7-to-2 decision final,
3* CR 1281. During Reed's speech, Gore commented "sotto voce,"

according to Reed, that the Dagenhart case had been decided before
the "'new era.'" Loc. cit.
i
ignore them."'*' This sentiment as to the legislator's duty was
not uncommon; and, in the speech of Senator Marvel Mills Logan,
a Kentucky Democrat who did not appear to be strongly opposed to
the bill or clearly satisfied with the Dagenhart case, the senti-
O
ment appeared in stark nakedness* Logan is worth a moment's
attention, therefore, although he is not typical* Logan was chief
justice of the highest court of Kentucky when he was elected to
the Senate in 1930. He supported much New Deal legislation, in
cluding the Guffey Coal Act of 1935, reputedly of doubtful con
stitutionality, and the Fair Labor Standards Act. The Black bill,
however, was unconstitutional, he said, "as the law is today."
Senator Huey P. Long of Louisiana, who stated that he knew Logan
was a friend of the bill's humane principles, intervened to sug
gest that many decisions which were not 5-to-4 could be cited to
support the bill. The intervention was unavailing. The "parti
cular question" of constitutionality in the Black bill had been
decided, said Logan. He granted that the Court could change its
mind, that the Court could say it had been wrong, and that legis
lators might disagree with the Court. Logan continued:
^ CR 1325. Hastings and Bailey each offered a reminder about

the consequences of acting according to Borah's view that the
question was open. A favorable vote, said Bailey, raised the
presumption of" constitutionality. CR 1328. Hastings added that
an act, although in conflict with the Court's opinions, would be
law until held unconstitutional. CR 1325.
^ For Logan's remarks, see CR 1287-1288. Logan was a member of

the Judiciary Committee but apparently was absent when the vote
was taken on reporting the bill. The New York Times. March 31, 1933,
p. 3.
3 CR 1288. Long referred to decisions upholding lottery, oleo
margarine, and monopoly legislation.
. . . but however much we may disagree with the
opinion of the Supreme Court, that opinion is right.
It may not have been right 5 minutes before the
opinion was delivered; it may not have been right
during the entire history of the Nation up to that
time; but the very moment that that opinion is
handed down and goes into the law books, when it
becomes final, then the Constitution means and must
mean exactly what the Supreme Court says it means*
I can place no other construction on it.
<*3J
c. The proponents
The constitutional argument of the supporters of the bill
lacked, on the whole, the appearance of doctrinal simplicity which
marked the argument of the opposition and of Borah* The case
for the bill rested on a more complicated foundation than the
proposition that the law was settled or the proposition that the
law was unsettled. The proponents did agree that the Court had
power to pass upon the constitutionality of acts of Congress.
They agreed also with Borah that a 5-to-4 decision did not settle
the law. But they did not engage in a concentrated assault on
the Dagenhart decision or display any readiness to admit as Borah
did that the bill was "undoubtedly" unconstitutional if the Dagen
hart decision stood. The argument of Senator Black illustrated
clearly the broadside nature of the case for the bill.
The argument of Black
Black reminded the Senate that the Dagenhart decision was
5-to-4 and stated, "I do not concede, insofar as I am personally
concerned, that a 5-to-4 decision of the Court is necessarily
final."1 If Black had been a member of the Court, he personally
would have had little difficulty in deciding the question of con
stitutionality. At the beginning of his speech on the first day
of the debate, he said, "A thorough and careful and long and pains
taking investigation has convinced me that there can be little
question of the right of Congress to pass this bill."2 However,
as leading spokesman for the bill in the Senate, Black bore the
1 CR 1117. 2 CR 1113.
I
responsibility for presenting — with an eye to Congress and to
the Court -- the strongest and most comprehensive case that could
be made.-*-
Only Black, during the debate, took time to review the his
tory of the commerce clause and the precedents for Congressional

g
exercise of police power within interstate commerce. He praised
the minority opinion in the Dagenhart case for following Mthe
plain intent and purpose of the commerce clause11 and for being
“more consonant . . . with progress than the majority opinion."s
He pointed out that only two members of the majority in the Dagen
hart case remained on the Court, that six new members had joined
the Court, that the Court had shown itself to be "not wholly
satisfied with the Dagenhart case," and that "the tendency of

today" was for the Court to exalt human rights above property
rights.4 National conditions had changed, and one could expect
"We must face two tribunals with this law,” Black had said
during the hearings. "The first is Congress. The second is the
Supreme Court." Hearings . . . on S. 5267, 72nd Cong., p. 295.
2 CR 1120-1126. 3 CR 1120, 1125.
4 CR 1115, 1125. Black cited Brooks v. U. S., 267 U. S. 432

(19257 as evidence that the Court, practically as constituted in
1933, was "not wholly satisfied." That decision had upheld the
National Motor Vehicle Theft Act of 1919, 41 Stat. 324, which
prohibited the transportation in interstate commerce of stolen
motor vehicles, although the evil preceded transportation and a
stolen auto was not itself harmful.
In Indicating a movement away from the Dagenhart decision,

Black did not add to the judicial precedent of the Brooks case
the Congressional precedent of the Hawes-Cooper Act of 1929, 45
Stat. 1084. That act, which followed the formula of the Wilson
Act of 1890 (26 Stat. 313) and divested convict-made goods of
their interstate character upon arrival in a State, assumed that
such goods came within the interstate commerce power. Nor did
Black cite as a Congressional precedent the Act of June 22, 1932,
I
*?JS~
that old distinctions would be seen in a new light. That light
had been described vividly by Black during the hearings. When
the general counsel of the Association of Railway Executives,
47 Stat, 326, forbidding the transportation in interstate and

foreign commerce of any kidnaped person.
In the Brooks case, the Court had found "a gross misuse of
interstate commerce" in the "defeat of the property rights" of
the owners of stolen vehicles, 867 U, S, 438 at 439, Black
did not cite any cases when he stated that "the modern emphasis
upon social rights" was "now frequently and happily reflected
in our judicial decisions," CR 1115,
Senator Robinson, Republican of Indiana, quoted from the

opinion of Brandeis, without mentioning that it was a dissenting
opinion, in New State Ice Co, v, Liebmann, 285 U, S, 268 at 311,
decided on March 21, 1932, to indicate a recognition by the Court
of the gravity of the depression, CR 1245, ", , • we must let
our minds be bold," Brandeis had said, (The Court invalidated a
State statute which declared the manufacture of ice to be a pub
lic business and prohibited engagemoit in the business without
a license,) During the hearings, William Green of the A, F„ of L,
summarized "the facts of the economic situation" by quoting from
Brandeis' opinion. Hearings . . . on S. 5867 . 72nd Cong,, pp, 4-5,
Another straw of hope was pointed out by Robinson of Indiana

during the debate. After paying a tribute to the dissent in the
Dagenhart case, Robinson stated " . . . that in the antinarcotic
cases later Mr, Justice McReynolds (who was of the majority in
the Dagenhart case) speaking for the Court intimated that a dif
ferent decision might be rendered if the case came up properly
for review again, CR 1244, Robinson was apparently referring to
U, S. v, Daughtery,-* ^ U, S, 360 at 362 (1926) which Black had
referred to in making the same point during the hearings.. Hear
ings . , , on S. 5267. 72nd Cong., p, 5. (Also, Representative
Condon, a Democrat from Rhode Island, and others, Hearings , . .
on H. R. 14105. 72nd Cong., pp, 113-114.) The point was mistaken
since the Daugherty case, which had been quoted out of context,
had intimated that U. S, v. Dor emus (see above p. ) rather than
the Dagenhart case might be reconsidered and that the purpose of
such a reconsideration would be to follow the first and second
child-labor cases rather than to overrule the Dagenhart case.
Black did not repeat the point during the debate.
I
Mr. Alfred Thom, had persisted in arguing that according to the
Dagenhart decision only articles that were harmful to health or
morals could be prohibited, the following colloquy occurred:
Senator Black* It is your opinion, then, that if

conditions had developed • • • to where millions of
people were permanently thrown out of work, that to-day
millions of people are on the verge of starvation,
millions of people undernourished, the situation has
become desperate, where the very civilization of the
country in which we live is in jeopardy, that it is
the opinion of the people and of Congress that if the
hours of labor are not shortened it would result in
the destruction of the government itself and destroy
the very court that was passing upon the case, and
■undermine the Government itself, so that if these goods
should be shipped from State to State it would contribute
to undermining that civilization and further add to the
want, poverty, misery, distress, suicides all over the
land — is it still your opinion that under those cir
cumstances the court would hold those goods would not
injure the public to such an extent that Congress could
prevent their shipment?
Mr# Thom# That is my judgment, Senator.*-
Black did not prophecy how the Court would act. During the
Senate debate, he said with reference to the judges who had joined
the Court since the Dagenhart case, "As yet the decision to be
rendered by that group is in the lap of the gods# They have not
spoken, and no doctrine of stare decisis applies to opinions on

g
constitutional interpretation." Although he left no doubt that
1 Hearings . « . on S. 5267. 72nd Cong., p. 257.
2 CR 1125# However, after presenting his full case, Black con

cluded with the following statement: "I present this bill in the
firm conviction that it will meet the approval of this body and
will meet the approval of the Supreme Court, and will meet the ap
proval of America." CR 1128.
Earlier, Black had said, without "any degree of disrespect,"

that decisions were often "the result of prepossessions." "All of
us know that such is true. It needs but to be asserted to be ad
mitted." CR 1120.
I
<*37
he would like to see the Court endorse the position which Holmes
had taken, Black vigorously denied that the hill was in direct
conflict with the Dagenhart decision. This denial was at variance
with the belief which Black had expressed during the hearings be
fore the new Congress had met. Then he had remarked with refer
ence to the constitutional problem, "It resolves itself down into
a question of whether a minority report of the Supreme Court in
the child-labor case shall stand, or the majority shall stand."^
On the floor of the Senate, however, Black said with regard to
the bill and the Dagenhart decision:
There is a clear line of demarcation, and, in my

judgment, a careful and analytical study made by any
lawyer . . . would cause him to reach the conclusion
that, even if the majority opinion in the child-labor
case should continue to be the law of the land, the
bill would stand the test of the Supreme Court of the
United States.2
The line of demarcation was that which had been indicated in the
committee report: whereas the bill was related to a national pro
blem and all of interstate commerce, the child-labor act affected
only "a small portion of interstate commerce" and was considered
by the Court to be solely an attempt to regulate hours of labor
within the States.3
Black described at length the conditions which made neces
sary the passage of the bill and concluded, "If the commerce of
1 Hearings . . . on S. 5267. 72nd Cong., p. 4.
2 CR 1113.
3 CR 1126-1127. Black did not disagree with the Court's descrip
tion of the child-labor act. For the committee report, see above
p.
<X3f
a commercial nation dies, what happens to the nation?”’1' This
emphasis on the national importance of the bill led easily to
the argument that the constitutionality of the bill was justi-

2
fied by emergency* For Black himself, this was clearly a su
pererogatory argument* His original bill, as he pointed out, had
not contained the two-year limitation.3 He proceeded, neverthe
less, to quote from opinions of the Court — mainly Wilson v.
New, upholding the Adamson Act of 1916, and Block v* Hirsh, up
holding a temporary post-war act restricting rises in rent in the
District of Columbia — to demonstrate the "irresistible conclu
sion" that "as an emergency measure alone" the bill would be up
held,^
Agreement and modification
Most of B l a c k ’s constitutional arguments seemed to be gener
ally accepted by his supporters. There was, for example, little
discussion of the commerce clause. Instead, the following senti
ment was occasionally expressed: ", • . s o far as I am personally
concerned I prefer to follow the reasonings of Mr, Justice Holmes."'*
1 CR 1116.
p
In the order of Black's presentation, however, the emergency
argument was presented first.
3 CR 1183.
4 CR 1120. In Wilson v. New, 243 U. S. 332 (1917), the Court by

a 5-to-4 vote, upheld the Adamson Act, 39 St at. 721, which had met
the threat of an impending strike of railway employees by establish
ing a standard eight-hour day without reduction of wages. For
Block v. Hirsh, see 256 U. S. 135 (
5 Robinson (R, Ind,), CR 1244.
There was somewhat more discussion of the finality of a 5-to-4
decision* Senator Joseph T. Robinson, who had been one of the
leading senatorial spokesmen for the child-labor bill in 1916,
stated that he had "never acquiesced, as a matter of reason, in
the argument of the Supreme Court in the Child labor Case,"
Robinson did not say clearly that his disagreement alone justi
fied ignoring the Court's decision*'1' A 5-to-4 decision, he said,
was binding until reversed, just as a statute was in force until
repealed* But the looseness of the analogy seemed to be under
stood since Robinson took for granted the necessity of Congres
sional initiative in re-submitting questions to the Court. ". •
. if afforded the opportunity," he said, with reference to the
Court, "it probably would reverse its ruling."2 On the whole,
even if there had been no "line of demarcation," the barrier of
a 5-15o -4 decision did not seem particularly troublesome* Deci
sion by 5-to-4 symbolized the conflict which existed as to what
the law was* If the Court overruled the Dagenhart case, said Black,
they would be following other cases.® Whatever the Court did —
For Robinson's remarks, see CR 1184.
2 Barkley (D, Ky.) stated that he was "somewhat confused and

troubled about what is the duty of a Member of Congress," but he
seemed to have his tongue in cheek. Barkley added that he was
not bothered by the margin of 5-to-4; a 5-to-4 decision was as
legal and binding as a law passed by a majority of one. Robinson
again remarked that a change of view by the Court could be known
only if another act was passed* Barkley replied, "Not necessarily.
Another lawsuit could be brought under the same statute and new
facts and new arguments could be presented to the Court," CR 1185.
This possibility received no serious attention.
3 CR 1186. See also the remarks of McKellar (D, Tenn.), l o c .

cit.
1
olÔ
and there was, said Black, an "absolute necessity of getting
this matter before the court" — there was "no excuse not to
vote for this bill if we believe in the policy of protecting
American labor." ^ Black’s lead was followed by Dill of

Washington, who during the debate was interested mainly in securing
an amendment. The constitutional question was "open," said
Dill, and he would not discuss it except to say that he

wanted "to resolve the doubt in favor of the laboring people
of the United States and place the responsibility on the
shoulders of the Court to determine whether such legislation

2
can be made to stand . . . ."
The most troublesome constitutional question was provoked
not by the commerce power or by the Dagenhart precedent but by
the notion of emergency. Although there would seem to be a

clear distinction between the theory that emergency gives rise
to new or inherent power and the theory that emergency conditions
justify the exercise of existing and enumerated power, the

distinction was obscured during the debate. Senators Wagner, long,
and Connally called attention to Black’s disagreement with the
former theory, and Black himself was explicit in saying that

"Congress has the right, under the commerce clause, to enact
legislation . . . to meet a temporary emergency." But Black
did not always add the qualifying phrase — "under the commerce
power"; and he may have sounded
1 2 1187.
3 CR 1119.. For Wagner and Connally, see CR 1117-1118. Long
concurred with the statement of Robinson quoted in the text
below and proceeded to restate Black’s argument. CR 1119-1120.
I
vl*/
bold when he said of the Adamson Act of 1916 that "it came under
the inherent power of the Government, acting under its Constitu
tion, to preserve the safety and liberty and health and happiness
of its people when threatened by an e m e r g e n c y * B l a c k ’s putting
of the case was not wholly satisfactory to all who supported him
g
and was wholly unsatisfactory to Borah, who opposed him. Parti
cularly for the majority leader, Hobinson, the emergency argument
seemed to be a ticklish one. He would "proceed very reluctantly,"
Robinson said, after remarking that the bill would be enacted, if
action was based on the theory that the courts could suspend pro-
•2
visions of the Constitution. Later, he added:
I wish to make it clear at this juncture that it

is my thought that the justification for this
legislation must be found within the Constitution,
rather than outside the Constitution. I do not
believe that Congress has the power, or that the
judiciary has the power, to set aside the Constitu
tion for one hour, and I think that any case or any
legislation that is rested on that basis will, in
the end, prove subversive.4
On the second day of the debate, these sentiments were dis
played at length by Borah in an attack on the "dangerous and in
defensible doctrine of emergency."® Black again disavowed belief
1 CR 1119.
2 For example, Clark, who stated that there was "nothing sacred
about the decision of the Supreme Court in the Child Labor Case"
and that it should be reversed, said also that he was "not im
pressed with the soundness" of Black's argument about emergency.
CR 1331.
3 CR 1118. 4 CR 1119,
3 CR 1178-118S. Borah did not move to strike out the two-year

limitation as he had said he would do. CR 1178. Nor did he call
for a roll-call vote when the committee amendment providing for
a two-year limitation was agreed to. CR 1344.
In the theory that emergency granted power and agreed “thoroughlyM
with the famous Milligan case, in which the Court in 1866 labelled
as “pernicious" the doctrine that provisions of the Constitution
could be suspended during "great exigencies*"1 Although Borah
seemed to accept Black's agreement, he continued with his speech
and attacked the "impression" which was in the air "that an emer
gency grants powers, as it were," "That proposition I controvert,"
said Borah. "I not only controvert it but I denounce it."
Amendments and minimum wage
Emergency justification and the two-year limitation, which
was a change in the original bill, pointed in the direction of
the N.I.R.A. Some other features of the Recovery A ct and of the
Fair Labor Standards Act were also forecast during the debate.
Efforts were made to secure many of the exemptions which were pro
vided for in the latter act, and several amendments were agreed
to.2 In addition some flexibility was provided for by authoriz
ing the Secretary of Labor "upon the submission of satisfactory
proof of the existence of special conditions" to issue "an exemp
tion permit" for overtime work.3 Senators Joseph T. Robinson,
1 CR 1180. The quotation from Ex parte Milligan is in 4 Wall.

2 at 120. CR 1180.
g
Black apologized because some exemptions which had not been
brought to the attention of the subcommittee had to be worked out
on the floor. CR 1289. Perishable commodities were exempted by
an amendment introduced by Dill (D, Wash.). CR 1186-1188, 1194-
1198. For related remarks by Vandenberg, see CR 1115, 1128, 1324.
With regard to other amendments which were accepted, see CR 1204,
1283, 1289-1291, 1344, 1348, 1349. Two amendments proposed by
supporters of the bill were rejected. CR 1283a-1289, 1344-1348.
3 Included i n the Dill amendment, CR 1198.
4
r
<2*3
Walsh, Tydings, and also Borah expressed some fear that the bill
might be too drastic and that wages might fall, but no amendment
1
with regard to minimum wages was proposed.
Black explained that the Committee had not included a minimum-
wage provision in the bill because Mthe Supreme Court has expressly
ruled, under the facts and circumstances then before it, that any
2
minimum wage law would contravene the Constitution." Black's
remarks did not imply that the Committee had been deterred entirely
by the Court, however. Although Black did not mention the anti
pathy of organized labor to a minimum-wage law for men, he noted
other reasons against such a provision. There were "compelling
factors" other than law, he said — "the force of organized labor"
and "the force of organized public opinion." (The former was to
find a statutory safeguard in the N.I.R.A.:} the latter was to be
invoked by the President in enforcing the codes and agreements un
der the N.I.R.A.) If, finally, industry did attempt to reduce
wages, lowering purchasing power still further, " . . . the power
of Congress would be broadened and amplified to meet new condi
tions."4 This conclusion was stated by Black without any appar
ent reliance on the theory of emergency.
1 CR 1113, 1179, 1198-1199.
2 CR 1113. Black was referring to Adkins v. Children's Hospital,

261 U. S. 525 (1923).
3 CR 1114. Nevertheless, Black announced that he intended to

offer a bill governing railroad employees and providing that wages
could not be reduced. Apparently with Wilson v. New in mind, Black
said to Tydings (D, Md.): "It is very questionable and exceedingly
doubtful whether under present conditions we have the right with
reference to other industries, but insofar as railroad operators
are concerned, the Senator need rest under no uneasiness. We have
that righto" Loc* ci t « On Aprj.1 7» 1933> Black introduced
S. 1181 to establish a six-hour day for employees of carriers
in interstate commerce, CR 1^80. in March 1934, hearings
were held on a later version of the bill, also introduced by
Black; but the bill was not reported. Hearings before the
Comnnttee on interstate Commerce. United States Senate, on
S. 2519. March 1-2, 6-7, 1934 (iii“300pp.) •
4H-S
B« The Black bill is superseded by the N. I, R. A.
In her memoir of Franklin D. Roosevelt, Frances Perkins has
written that Roosevelt was "quite certain" that the Black bill
would not solve the unemployment problem#1 Die bill did not con
ceive of "a dynamic situation where production and jobs might
increase," in the words of Miss Perkins* There was no provision
for a minimum wage or an agency "empowered to grant variations
under responsible controls"; nor did the President feel that a
reduction to thirty hours was essential for health and welfare.
Miss Perkins added, finally, another reason for dissatisfaction:
The President also believed the Black bill unconsti

tutional. That had been the view of every attorney
we had consulted in New York and of every lawyer on
the federal level including the Attorney General .2
"The NRA," however, according to Miss Perkins, "seemed to be an
approach to that objective" — a ceiling over hours and a floor
under wages — "which was thought to be quite safe on the grounds
of constitutionality."
Although the President may have considered the NRA prefer
able to the Black bill on the ground of constitutionality, his
1 Frances Perkins, The Roosevelt I Knew. 1946, see pp. 192-194.
2 Ibid.. p. 194.
3 Ibid., p. 246. Just why the NRA was thought to be on more
solid constitutional ground than the Black bill, Miss Perkins did
not say.
Note: NRA refers to the National Recovery Administration;

N.I.R.A. to the National Industrial Recovery Act.
reasons of policy for preferring the approach of the NRA were so
predominant that constitutional considerations seem trivial by
comparison# A month after the Senate had passed the Black bill,
Roosevelt in a fireside chat spoke of legislation which was in
process and of shorter hours and fairer wages# But he did not
mention the Senate’s passage of a thirty-hour week bill or the
hearings which had just ended in the House on the Black-Connery
bills and on proposals made by the Secretary of Labor. Instead,
Roosevelt announced that "well-considered and conservative measures"
would be proposed which would constitute a "partnership in plan
ning# The proposal — for "a great cooperative movement through
out all industry" — was made to Congress on May 17, ten days
later#2 "With the authority and under the guidance of Govern
ment," the antitrust laws notwithstanding, private Industries
were to be permitted to make codes of fair competition, including
provisions governing wages and hours# In his radio talk, Roose
velt had said that probably ninety per cent of the cotton manu
facturers, for example, would conform to such an agreement# For
the few who did not, he asked Congress "to provide a rigorous li
censing power." The President noted briefly but with emphasis
that the proposals were based on "the gravity of the emergency";
to the radio audience he had announced that they came "wholly
1 CR 3012.
2 CR 3549. On the same day the Administration's bill was intro
duced by Senator Wagner (D, N. Y.) and Representative Doughton
(D, N. C.). S. 1712 and H.R. 5664, CR 3550, 3611. H*R. 5755 was
reported in the House on May 23 and remained the designation of
the bill which was finally to be enacted. CR 4062.
within purposes for which our American constitutional government
was established 150 years ago." No indication was given that
considerations other than those of policy had governed the Ad
ministration's course of action* The assurance which was ex
pressed as to constitutionality could have been offered for the
thirty-hour week as well.
During the month between Senate passage of the Black bill
and Roosevelt’s fireside chat, Representative Connery and his
committee met with Miss Perkins in closed session and heard her
again on the first of nine full days of open hearings«•*■ Miss
Perkins recommended that a board rather than the Secretary of
Labor, as in the Senate's version of the Black bill, be author
ized to issue exemption permits and only within limits and in
g
accordance with certain procedures. No constitutional objections
New York Times. April 13, 1933, p. 2. Hearings before the

Committee on Labor. House of Representatives. on S. 158. H. R .
4557. and Proposals offered by the Secretary of Labor. 73rd Cong,,
1st Sess., 11-991pp., April 25-May 5, 1933.
Preference for the NRA approach among industrial leaders was
evident during the testimony. See, for example, the testimony
of Gerard Swope, president of General Electric, and Henry I.
Harriman, president of the Chamber of Commerce of the United
States. Ibid.. pp. 91ff, 194ff. Harriman added constitutional
reasons to his argument. "I believe," he said, "the Supreme
Court would sustain the constitutionality of an act permitting
trade associations to define both minimum wages and maximum
hours if these findings were made in consultation with labor and
with the approval of some Governmental board to indicate the public
welfare was amply protected. The present emergency is most seri
ous." Ibid. p. 199. William Green, president of the A.F. of L.
favored an amendment guaranteeing free collective bargaining.
Ibid. pp. 65-66. This provision was to be incorporated into the
bill reported by the Committee as well as in the N.I.R.A.
® See ibid.. pp. 4-6.
4HS
were raised; nor were this and other recommendations designed,
apparently, for constitutional reasons* Constitutional questions
were, indeed, increased in number by the proposal that provisions
be made for minimum wages; Miss Perkins suggested following the
language of the recent and carefully drawn New York law but cover
ing all persons rather than only women and minors.^ Many mem
bers of the committee appeared sympathetic to the Perkins pro-

p
posals, but industrial leaders and organized labor were opposed.
There was opposition, also, from the Administration to Connery's
embargo provision, which the Committee refused to eliminate.3
See i bid., p p . 3, 6-8•
2 See New York Times. April 19, 20, 21, 1933, pp. 1-2, 5, 8, and
Raymond Moley, After Seven Years. 1939, p. 187. For the Labor
Committee's response to Miss Perkins' proposals, see Hearings . . .
on S. 158 [etcrj , pp. 10-24.
Matthew Woll of the A. F. of L., who opposed a minimum wage

for the traditional reason that it "in most instances will become
the average or maximum wage," raised various constitutional doubts
and referred frequently to constitutionality. Although he was not
"a practicioner," he said, "I have studied law." Ibid.. 139ff.
® Following the suggestion of Perkins on April 12 that the em

bargo clause be eliminated, the Committee on Labor voted 11 to 4
to retain the clause; and Connery was reported as saying that he
would vote against the bill if the provision was eliminated. New
York Times. April 13, 1933, p. 2. The President tried again to
eliminate the*provision, but Connery was adamant. Ibid., May 2,
1933, p. 2.
During hearings on the fair labor standards bill in 1937,

Connery looked back upon 1933 and stated that it was his refusal
which brought about the writing of the N.I.R.A. and the writing
of a provision authorizing the President to embargo or to tax im
ports. Hearings (cited below, p .-3*/, fn. / ), p. 114. See Sec.
3(e) of 48 Stat. 195. Black, speaking later on the Senate floor
in opposition to an amendment directed at foreign goods, remarked
that a similar provision had defeated the thirty-hour week bill
in 1933. CR 75:1: 7747.
For these reasons, and because persons in the Administration other
than Perkins were already working on the differently-conceived
NRA approach, the President abandoned interest in the Black-Connery
bills.1 On the fifth day of the hearings, Senator Joseph Robin
son told reporters after a White House conference that the Black
2
bill was Hnot now in the picture.M
During Congressional consideration of the Black and Connery
bills, constitutional questions had been of secondary importance
and the Supreme Court had represented only a distant and indis-
•X
tinct threat. Constitutionality and the Court were even less
As early as April 11, the day before Perkins’ first meeting

with the House Committee, Raymond Moley was directed by the
President to speak with persons outside the Administration who
had been working on plans for cooperation between business and
government. Moley, op. cit., p. 187.
2 Quoted in New York Times. May 2, 1933, p. 2. On the same

day, Senator Walsh (D, Mass.)|(forecast the Administration's ap
proach by introducing a bill to encourage planning in industry
by permitting controlled cooperation and protecting agriculture,
labor and consumers . . . ." S. 1555, CR 2602. Walsh had
introduced a similar bill on Jan. 25, 1932. S. 3256, CR 72:1:
2601-2605. See also H.R. 5521, by Mead (D, N.Y.), May 5, 1933.
CR 2960.
® If the Black bill had reached fhe floor of the House, would
there have been more discussion of constitutionality than there
ha d been in the Senate? A few days after the Senate had acted
on the Black bill, Speaker Rainey told newspapermen: "There is
a lot of dynamite in that bill. There are a lot of complications.
They must be considered. There is the question of constitution
ality, which might be submitted to the Judiciary Committee."
New York Times. April 8, 1933. Editorially, the Times took hope
from Rainey's statement and said, "The sober House is going to
hold back the hotheads of the other body;" Ibid., p • 12. See
also a second editorial, ibid.. April 10, 1933, p. 12. The bill
probably could have been enacted, however, if the Administration
had given the support which it gave to its own bill.
important during Congressional consideration of the national in
dustrial recovery bill. A concentrated constitutional attack
was diverted by the bill's limited duration, the emphasis on co
operation, and such problems as the relation of the act to the
anti-trust laws and the financing of public works under Title II
The inclusion of public works, of provisions that appealed parti
cularly to industry or to organized labor, and the grant of autho
rity to the president to take action against the competition of
foreign goods lessened opposition to passage of the bill. In
addition, there was present the full force of the President's

2
prestige and power. Cries of unconstitutionality and dictator
ship were heard, but the bill passed the House by a vote of 325
to 76 after a two-day debate and the Senate 58 to 24 after a
three-day debate. In the House a majority of Republicans —
1 Ttie bills were referred to the finance committees of the

House and Senate, and hearings were largely concerned, respectively,
with public works and control of the oil industry. Hearings be
fore the Committee on Wavs and Means. House of Representatives.
on H. R. 5664. 73rd Cong., 1st Sess., lv-321pp., May 18-20, 1933.
Hearings before the Committee on Finance. United States Senate.
on B. 17l2 and H. R. 5755. 73rd Cong., 1st Sess., lv-439pp.,
May 22-June 1, 1933. The committee reports are mentioned below
P*
2 "Democrats,” said the majority floor leader, Byrns of Tennessee,

speaking for a drastic closed rule in the House, "I ask you to
give your support to the President of the United States." See
CR 4196. See also the remarks of Pou (N. C.), chairman of the
Rules Committee. CR 4188.
3 May 26 and June 9, 1933. CR 4373, 5424-5425. See especially

the remarks of Representative James M. Beck, CR 4196, 4218-4217,
4323.
For Senator Wagner's defense of the bill's constitutionality,

see CR 5152-5156.
4St
54 to 50 — voted Yea; and only 25 among 301 voting Democrats
left the party line to oppose the hill.^ In the Senate, the
majority was even larger than it had been for the thirty-hour
week bill; five southern Democrats (including Bailey of North

g
Carolina) now voted Yea,
One Farmer-Labor member voted Nay.
2 Except for the shift of the five southern Democrats, the

vote on the N.I.R.A. was practically unchanged from the vote
on the Black bill. Two Democrats and two Republicans who had
voted for the Black bill now voted Nay and two Democrats and
two Republicans who had voted against the Black bill now voted
Yea. In the latter group was the minority floor leader, McNary
(R, Ore.). In the former group was Clark (D, Mo.) who moved
to strike out Title I because it emasculated the anti-trust laws,
established "an industrial dictatorship," and authorized "some
bureaucrat" to license the legitimate business of American
citizens. Black and Long as well as Bailey and many Republicans
supported the motion but it was defeated, 31 to 49. CR 5300,
5308.
<*s<^
C. The Connery substitute bill
The House Committee on Labor had continued with its hearings
regardless of the apparent loss of Administration support. On.
May 10, a week before introduction of the Administration's bill
into Congress, Connery reported a radically new substitute bill
with the nearly unanimous support of his committee and on the
following day sought a special order from the Rules Committee and
stated that if necessary he would start a discharge petition.^
In the face of opposition from the Administration, Connery's ef
fort was doomed; but the new bill and the accompanying report
are of special interest. The bill represented the furthermost
point to be reached by a Congressional committee up to that time
in proposals for the regulation of labor standards; and, in the
use of a licensing power in interstate commerce, the bill went
even beyond the N.I.R.A. Whereas the N.I.R.A. authorized the
President to license business "in or affecting interstate com
merce" only when cooperation failed, the bill itself prescribed
hour, wage, and child-labor standards for the licensing of all
persons "engaged in the production, processing, or manufacture of
goods, articles, or commodities entering into interstate or foreign
^ House Report N o . 1 2 4 . 73rd Cong., 1st Sess., May 10, 1933

(pp. 1-6). The vote in the committee was unanimous except for
one member who reserved the right to oppose. Ibid., p. 4. See
also CR 3293 and New York Times. May 12, 1933, p. 1.
commerce • . . . The report which accompanied the bill did not
discuss constitutionality with care; yet on the subject of con
stitutionality, the report had more to say than was to be said
by the House Ways and Means Committee or the Senate Finance Com
mittee in their reports on the national industrial recovery

p
bill* The substitute Connery bill and the report are also
notable because, with some changes, they were both re-submitted
to the House two years later, following the invalidation of the
N.I.R.A.3
The substitute bill included in its title the phrase "for
the general welfare"; and in the preamble, "a grave national
emergency" was declared to exist.^ Conditions precedent to the
■L Sec. 4(b) of 48 Stat. 195. House Report No. 1 2 4 . 73rd Cong,

p. 2. Perkins had written a letter to Connery objecting to
wholesale licensing. New York Times. May 11, 1933, p. 3.
Not until after the hearings of the Labor Committee had begun
was a bill introduced, during the current session of Congress, to
establish minimum wages for workers producing goods for inter
state commerce. See H.R. 5332 introduced by Cannon (D, Wis.),
April 28, 1933, CR 2592.
2 House Report No. 159. 73rd Cong., 1st Sess., May 23,1933
(pp. 1-34). The Ways and Means Committee explained Title I
briefly and said of Section 1, the declaration of policy: "This
section also establishes the constitutional basis for the legis
lation, which is predicated upon both the Interstate commerce
clause and the general welfare clause of the Constitution." The
licensing power was described as "a vigorous emergency power
which, it is assumed, will not be-exercised except where neces
sary . . . ." Ibid.. pp. 2, 4.
The Senate report (Senate Report No. 1 1 4 . 73rd Cong., 1st Sess.,
June 5, 1933, pp. 1-15) said nothing of constitutionality but re
printed in small type the text of the House report.
3 See below p. 3 A3,
4 The text of the bill is i n House Report No. 1 2 4 . 73rd Cong.,

pp. 1-4.
granting of a license were defined: maximum hours of thirty a
week, "a just and reasonable weekly wage," no workers under the
age of 16, no forced or indentured labor, and no workers who had
signed a contract not to join a labor union or who were denied
the right of collective bargaining. A Federal Trade Regulation
Board was established to "control and regulate" persons subject
to the act, to grant exemptions from the hours requirement, and
to make findings as to wages. The bill empowered the Secretary
of the Treasury to prohibit the entry of foreign-made goods pro
duced at less than the American cost of production. In addition
the postal and proprietary powers were exercised. No one was
permitted to transmit goods through the mails unless he had a
valid license, and no goods were to be bought by a national gov
ernmental agency or with any money or credit supplied by the
United States if in the production of the goods workers were .em
ployed under sub-standard conditions.^
The report of Connery's Committee was short. The extensive
ness of the hearings was cited and the substitute bill was ex
plained and justified in three pages.2 In the course of the
three pages, there were several references to the Constitution;
none to the Court, No judicial or other precedents were offered;
the Constitution alone was cited as authority. The general welfare
clause appeared to be foremost in importance and secondly the com
There w^s no indication in the report that the section dealing

with government expenditures had been added in case other parts
of the bill were held void. The committee explained that the sec
tion was evidence of Congress' "own sincerity of purpose." H. Rept.
No. 1 2 4 . 73rd Cong., p. 6. -
2 See i bid.. pp. 4-6.
° ? S .€ -
merce clause. Emergency was given no particular constitutional
significance. In the conclusion of the report, emergency as a
reason of policy and reference to the general welfare appeared
together:
It will be conceded that a national emergency exists.

It is admitted that some 15,000,000 of our people are
in want. The Congress, under the Constitution, is
charged with the responsibility of legislating for
the general welfare . . . .
Earlier in the report, the following paragraph appeared with
reference to interstate commerce:
The Constitution charges the Congress with the

duty of legislating for ‘the general welfare of the
United States,1 and later the Constitution was amen
ded placing in the control of Congress the regulating
of interstate commerce.
(The schoolboyish error in the statement quoted above was cor
rected when the report was re-submitted in July 1935; the words
"later the Constitution was amended placing" were changed to
"the Constitution p l a c e s . T h u s , with regard to constitution
ality, the Committee went no further than assertion and recog
nized no judicial barriers. The Committee's avoidance of con
flict with the Constitution or the Court, at least on the surface
of the report, was most clearly evident in the paragraph concern
ing child labor. After referring to the response of Congress "to
the demands of the American people" in once passing a child-labor
law, the report went on to say:
1 Ibid., 4. H. Rent. No. 1 5 5 0 . 74th Cong., 1st Sess., p. 4.
Having failed to accomplish that purpose through
the enactment of legislation the Congress submitted
• • . a constitutional amendment. Since that time
several of the States have approved of the constitu
tional amendment. This will indicate that the American
people are opposed to the continuation of the exploita
tion of our children by those who simply seek riches.
The committee believes that the Congress is well within
its constitutional power in providing that those who-i
engage in interstate trade shall be licensed . . . .
-*• H. Rent. No. 1 2 4 . 73rd Cong., p. 6. At the time of the

report, fewer than a dozen States had ratified the Child-Labor
Amendment; but nearly half of this number had ratified since
the beginning of the year. New York Times. March 23, 1933, p.
May 20, 1933, p. 4.
<ZS7
D. During the life of the N. I. R. A .
1. In general
The constitutional doubts which Congress had faced in pass
ing the temporary N.I.R.A. arose once again with the necessity
to make new policy for the period following the expiration of
the act. But not until the unfavorable decision of the Supreme
Court in the Schechter case, three weeks before the expiration
date, was Congress confronted seriously with the problem of how,
constitutionally, to establish national labor standards. During
the life of the Recovery Act, constitutional doubts had continued
to exist; but once the doubts of legislators had been resolved in
favor of action, constitutionality became the concern mainly of
the act’s executors and of judges. In Congress, meanwhile, bills
were proposed - - to include a thirty-hour week provision in the
codes, for example, and to prohibit child-made goods in inter
state commerce -- which were intended, in effect, to supplement
the Recovery Act.'*' The proposals raised questions of policy but
no major questions of constitutionality beyond those still to be
decided with regard to the NRA. There was also some supplementary
movement along other avenues — toward interstate cooperation and
amendment of the Constitution — which were not related to the
constitutional fortunes of the Recovery Act but were of potential
significance as constitutional alternatives.
^ Interstate cooperation is discussed in Section III, pp. J 3 6-337.
6>S8
2. The Black and Connery bills
The support of both industry and organized labor gave an
auspicious start to the life of the Recovery Act, but dissatis
faction on both sides grew rapidly.1 Within four months, the
American Federation of Labor was demanding that the codes be re
vised to provide for a thirty-hour week; and early in 1934 Re-

2
presentative Connery again introduced a thirty-hour week bill.
Again, hearings were held; and a bill was reported on March 7,
two days after the President had announced his "inescapable con
clusion that we must now consider immediate cooperation" for higher
wages and shorter h o u r s C o o p e r a t i o n , however, had been declin
ing and continued to decline. The steps which were taken to se
cure legal enforcement were opposed on constitutional grounds,
and objections were re-inforced by some lower-court decisions un
favorable to the NRA.4 In March 1935, following new and extensive
1 When the act was passed, the President of the National Associ
ation of Manufacturers and the president of the Chamber of Com
merce of the United States both appealed to industry to give una
nimous support. New York limes, June 14, 1933, p. 1.
2 See New York Times. Sept. 29, 1933, p. 1 and, with regard to
the 1933 convention of the A. F. of L., 37 Monthly Labor Review
1120. Connery’s bill was H. R. 7202, Jan. £2, 1934, CR 73:£: 1125.
2
Hearings before the Committee on Labor. House of Represen
tatives. on H. R. 7202. H.R. 4116. and H. R. 8492. 73rd Cong., 2nd
Sess., iii-492pp., Feb. 8-23, 1934. H. R. 4116 was a thirty-hour
week bill which had been introduced by Dunn (D, Penn.) on March
23, 1933. CR 73;1: 851. H. R. 8492 was the bill reported by the
Committee. House Report No. 889. 73rd Cong., 2nd Sess., March 7,
1934 (pp. l - s H
Roosevelt spoke on March 5, 1934 to a general conference of

code authorities. He stated that there were "millions still un
employed" and that purchasing power was still-too low. CR 73:2:
3676.
<2S9
hearings in the Senate, a thirty-hour week bill was again reported
favorably; and for the first time during the history of these bills,
lengthy "minority views” were also reported*'*'
The report which was submitted on Connery's bill in March
1934 and the report on Black's bill in March 1935 were revealing
of the dissatisfaction which labor and small business felt toward
the NRA. The House report charged that labor was inadequately
represented on the code authorities, that "big industrialists"
had successfully defied the codes, monopolies had grown, and prof
its had increased* Both reports expressed urgency as to the need
for action to meet the problem of some 10,000,000 unemployed* The
report on Black's bill stated the indictment with memorable force:
Innumerable idle American machines, mines, factories,

farms, women, and men present to the world a record
which for suffering, inefficiency, and waste surpasses p
every other similar record in the history of the world*
"The comparatively few decisions against the N.R.A. have re

ceived wide publicity . . . Donald Richberg, chairman of the
N. I. R. A. Board* Hearings before the Committee on Wavs and Means
• • • Tsee fullvseetl-en below p**?£6fn. *3 1 , p* 11*
L citation J
Hearings before the Committee on the Judiciary* United States

Senate* on S. 8 7 * 74th Cong*, 1st Sess., iii-493 pp., Jan* 31-
Feb. 19, 1935* Senate Report No. 5 6 7 * 74th Cong., 1st Sess.,
Part 1, March 23, 1935 (pp. 1-6); Part 2, Minority Views, March
29, 1935 (pp. iii-28 pp.).
Connery and Black had introduced similar bills on January 3

and 4, 1935, at the beginning of the new Congress. H. R. 2746 and
S. 87, CR 74:1': 52, 102. Shortly after S. 87 was reported, Con
nery introduced a bill apparently identical with S. 87. H. R.
7198, April 2, 1935, CR 74:1: 4894.
2 S. Rent. 367. 74th Cong., Par& 1, p. 3. For fumbled compre

hensiveness, the Senate report resembled the report of February
1933 on Connery's bill. See above pp.
O
The Connery and the Black hills, as reported, both defined
a standard — a maximum of thirty hours of work a week without
any reduction in wages. Both hills provided that the standard
should be included in all NRA codes and agreements and authorized
certain exceptions to be made.-*- In addition, the House bill
authorized the President to exclude from interstate commerce any
goods which competed unfairly with goods made under a code. The
Senate bill directly prohibited the shipment of substandards
goods. It also applied the standard to the Government1s loans
and contracts.
Neither report recognized any constitutional problem. The
House report repeated a reference to the general welfare clause
which had been used in an earlier report but omitted any refer-
p
ence to interstate commerce. The Senate report of six pages,
although it was accompanied by a minority report of twenty-eight
pages submitted by two Republicans and one Democrat who attacked
the constitutionality of the bill, said nothing about the consti
tutional argument of the opposition but a good deal about the op
position itself.3
1 The House bill also provided for equal representation of

labor with employers on the code authorities. See H. Rent. 8 8 9 .
73rd Cong., pp. 1-2; S. Rent. 567. 74th Cong., Part 1, p. 1 and
Part 2, pp. 2-3.
2 H. Rent. 889. 73rd Cong., p. 3. The reference to the general

welfare appeared to have been taken from a sentence in H. R e n t .
1 2 4 . 73rd Cong., p. 4. That sentence had also included an inac
curate reference to interstate commerce. (Hie sentence is quoted
in the text above, p . ^ ^ T
3 The minority report is discussed below.
Fundamentally the opposition to the pending bill
is that of the privileged groups who object to the
enjoyment of a fair share of our wealth by those
who produce it.l
A new tone of bitterness, suggestive of class conflict, was
evident in the report. In behalf of "the toilers," the report
attacked “business" rather than just "the chiseling few," who
were attacked (in the terminology of General Johnson of the NRA)
in the House report. In effect, the Senate report concluded that

g
to cooperate with the forces of “greed” was futile. The motives
of the opposition were, it seemed, so selfish that serious dis
cussion of constitutionality was unnecessary.
The minority report, largely a compendium of adverse testi
mony presented at the hearings, was notable for the hoariness of
the principles which it restated and the newness of its documenta
tion. The report was prepared by Senator Warren Austin of Ver
mont, who was to repeat the arguments during the debate on the
fair labor standards bill two years later, and was concurred in
by Hastings, Republican of Delaware, and Burke, Democrat of Nebras
ka. Almost half of the report was a demonstration of the bill's
violation of "the laws of nature and of economics." The bill's
incompatibility with the Declaration of Independence and the Con
stitution was set forth; and, in the remaining pages, not only
1 Part 1, p. 4.
2 Business had failed to heed the President's requests of

March 1934, the report noted. "As a whole, business always has
and probably always will consider profits more important than
human welfare." The testimony produced at the hearings was dis
missed as showing "no deviation from traditional form" dating
back to the "fifteenth century" [sicj . See pp. 3-4,-6.
were Supreme Court decisions reviewed (mainly by means of extracts
from the testimony of James Emery of the N. A. M . ), but also some
two dozen recent decisions of federal district courts were cited
— including a decision reported by the United Press since the
close of the hearings.*^
The report also cited a Supreme Court decision which was

handed down after the close of the hearings — Baldwin v. Seelig,
294 U. S. 511, March 4, 1935, in which the Court held void an
attempt by New York to prohibit the sale of milk bought outside
the State at less than the State's minimum price® The decision
was offered by Austin as a re-affirmation of State control over
intrastate business; but Cardozo's opinion, which was quoted at
some length, was concerned with interstate commerce and the limits
of State rather than Federal power over that commerce* "The Con
stitution o • • • was framed upon the theory," said Cardezo else
where in his opinion, "that the peoples of the several states
must sink or swim together • • . 294 U. S. 511 at 523.
*63
3. The President
While the Recovery Act was in force, the President did not
appear concerned about constitutionality* In his annual message
on January 3, 1934, the setting of national labor standards fell
into the category of past accomplishments*"^ When the second New
Deal Congress met on January 3, 1935 and the third year of the
New Deal began, there was no clear foreboding of constitutional

g
troubles ahead* During December, the "hot oil" case had been
argued before the Supreme Court — affecting a section of the
N.I.R.A. which authorized the President to prohibit the shipment
of "hot oil" in interstate commerce; but the Court had not yet
ruled upon any New Deal statute* The New Deal had had a popular
review, however, during the recent Congressional elections and
had been upheld by a sizeable majority. In the words of Robert
H. Jackson, "Most people, in and out of the Administration, were
confident that all was well* The President, the Congress, and
the country were on the m a r c h . T h i s confidence was expressed
Under the NRA, said Roosevelt, child labor was abolished,

"several millions" were re-employed, and standards of hours and
wages were uniform in ninety-five per cent of the industrial em
ployment covered by the Recovery Act. CR 73:2: 5-6.
p
Early in 1934, the Court had upheld a State moratorium on
mortgage foreclosures and State fixing of minimum prices for milk.
Home Building & Loan Association v* Blaisdell, 290 U. S. 398, and
Nebbia v. People of State of New York, 291 U. S. 502. The deci
sions " . . . held out a glimmer of hope that the Supreme Court
would take a broad view of the Constitution," Roosevelt has written.
Public Papers. Vol. IV, p. 6. But the 5 to 4 split in the Court
was a division "which might spell peril for the New Deal." Robert
H. Jackson, The-Struggle for Judicial Supremacy. 1941, pp. 78-82.
® Oj), cit*. pp. 84-85.
<4t>+
by the President when he appeared before the new Congress
"We have -undertaken a new order of things," he said, "yet we
progress to it under the framework and in the spirit and intent
of the American Constitution." Roosevelt announced new programs
of legislation; also, he reminded the country that "child labor
had been for the moment outlawed," praised the National Recovery
Administration, and called for "the renewal and clarification"

2
of its general purposes.
A few days later, the unfavorable decision in the "hot oil"
case was handed down, holding that there was an excessive dele
gation of legislative power in the section of the N.I.R.A. which
was at issue.3 The decision created profound anxiety, accord
ing to Jackson. "... what was to become of the more general
power to approve codes of fair competition for unspecified in
dustries?"^ On February 20, 1935, without referring to the "hot
oil" case or to any question of unconstitutional delegation of
1 CR 74:1: 94-96.
2 Roosevelt announced that he was now ready to submit the

program for social security which he had promised the preceding
June and to propose a new and unified program of public employ
ment to meet "the stark fact . . ♦ that great numbers still re
main unemployed." Both of these programs were to begin within
the year. On April 8, the Emergency Relief Appropriation Act of
1935 was approved, providing relief and public employment and
also authorizing the President to determine the hours of work and
rates of wages. Public Resolution No. 11. The security propo
sals took statutory form in the Social Security Act of August 14,
1935, based upon the taxing and spending powers. 49 Stat. 620.
3 Panama Refining Co. v. Ryan, 293 U. S . 388, Jan. 7, 1935.

Only Justice Cardozo dissented. The Court did not discuss inter
state commerce but assumed, without deciding, that Congress could
prohibit the transportation of certain excess oil in interstate
commerce.
4 Op. cit., p. 94.
o?6S
of legislative power, the President recommended to Congress that
the legislative purpose of the Recovery Act he clarified by further
definition of standards for administration and that the Act,
which was to end on June 16, be extended for two years The
voluntary mald.ng of codes would be encouraged, Roosevelt said,
but in cases of no agreement, " . . . unquestioned power must rest
in the Government to establish minimum standards • • • child labor
must not be allowed to return, the fixing of minimum wages and
maximum hours is practical and necessary."
1 OR 74:1: 2265-2266.
4. The proposal to extend the N.I.R.A.
Both Connery and Black failed In attempts to get their bills

to the f l o o r O n the other hand, reconsideration of the N.I.R.A.
itself could not be postponed because the act was due to expire
on June 16, 1935, During the months preceding the Schechter
case, uncertainty as to the future of the NRA resulted in "rapid
disintegration and demoralization of both enforcement and com
pliance, 1,2 What should be done was the subject of much scattered
discussion. Most of the heat and controversy centered about the
powers of code authorities and practices considered to be mono

polistic, whereas the idea of providing for minimum labor stand
ards on a permanent basis was widely accepted,5 There was also
The Connery bill of 1954 did not move beyond the Rules Com
mittee, In the closing days of the Seventy-third Congress,
Connery made an unsuccessful attempt to force action on S, 158,
the Black thirty-hour week bill in the form in which it had
passed the Senate; but only 83 names were secured on a discharge
petition. See CR 73:2: 9887-9891 and 74:1: 4707-4708.
On April 8 , 1935, while the Finance Committee's hearings
on the N.I.R.A. were in progress, Black moved that the Senate
consider his bill. Both the majority leader and a minority
spokesman agreed that the time was not "opportune," and the
motion was defeated on a roll-call vote— 21 to 56. CR 74:1:
5234-5235. In the House, the attitude of the Rules Committee
had deterred Connery's committee from even reporting a thirty-
hour week bill. See CR 74:1: 4707-4708.
2 Senator Robert M. LaFollette, Jr. (Prog., Wis.), CR 74:1:
7482.
5 See here and there in "Investigation of the National Recovery

Administration," Hearings before the Committee on Finance. United
States Senate, pursuant to S. Res. 79. 74th Cong., 1st Sess., 7
pts., 3, 187 pp., March 7-April 18, 1935; "Extension of the
National Industrial Recovery Act," Hearings before the Committee
on Ways and Means. House of Representatives, 74th Cong., 1st
Sess., 778 pp., May 20-24, 1935.
*(>7
much discussion about strengthening the constitutionality of the act;

that the act as written was of uncertain constitutionality seemed
to be agreed upon on all sides. Amendment of the Constitution
was generally considered to be unnecessary although the pending
Child-Labor Amendment was given strong support,'*' (The special
case of child labor is described below.) Discussion of doubts
was concerned mainly with redefining the coverage of the act in

order to confine it clearly to interstate commerce. Within this
narrowed scope, labor standards were assumed to be constitutional;

and many believed that Congress might go beyond the Recovery Act's
mere delegation of power over "maximum hours , * , minimum rates
• • • and other conditions" and, by statute, define standards,

including child-labor standards, to be directly enforced by a
g
national administrative agency*. No plan was evolved, however.
During 1953 and 1934, two constitutional amendments were

proposed granting Congress some power o'ver labor standards. On
April 4, 1933, Rep. Crosser (D, Ohio) re-introduced a proposal
to authorize limitation of hours which he had first introduced
on May 16, 1932. H.J. Res. 145, CR 73:1: 1240; H.J. Res. 384,
CR 72:1: 10244. On the preceding day, Kvale (F-L, Minn.) pro
posed granting Congress power "to regulate the production and
marketing of commodities and t© prescribe minimum wages and maximum
hours of labor during an emergency." H.J. Res. 139, CR 73:1: 1156.
On January 3, 1935, Crosser and Kvale re-introduced their

joint resolutions; and on January 4, 1935 Senator Costigan (D,
Col.) proposed granting power to Congress over hours, conditions
of labor, minimum wages, "and to regulate production, industry,
business, trade, and commerce to prevent unfair methods and
practices therein." H.J. Res, 48, H.J. Res* 55, S.J. Res. 3,
CR 74:1: 57, 104. -
2 During the "period of doubt over NRA's future," Secretary of
Labor Perkins, in order to save wage and hour standards in case
the NRA "doesn't work or breaks down," persuaded the Department's
solicitor to draw up a public contracts bill and a general wage-
hour bill. Perkins, op. cit.. pp. 248-249. For Roosevelt's re
action, see ibid., p. 249.
i'abor standards remained attached to the structure of the NRA,
and the constitutionality of their regulation remained entangled
with that of the codes*
The codes might have been left to expire, and prosecution of
the pending cases might have been stopped short of the Supreme
Court*■*■ But there had arisen a “demand in and out of the Congress
for a ruling from the court of last resort on the constitutionality
2
of the NRA.” The demand came to be shared by the supporters as
well as the opponents of the NRA; and to some extent the failure
to develop a comprehensive labor standards bill was due to uncer
tainty about constitutionality pending a decision by the Court, as
well as to unpreparedness with regard to policy. To what extent

the demand for a decision by the Court was motivated by hostility
toward policy, honest uncertainty about constitutionality, habit,
or other reasons, it is difficult to say. At any rate, the action

which was taken in Congress with regard to extending the Recovery
Act was designed to save neither the policy of the Act nor its
constituti onality •
The Senate's Finance Committee held hearings from March 7 to
April 18 on the operations of the NRA and on May 8 , 1935, the day
the Supreme Court heard argument in the Schechter case, reported
a joint resolution to extend Title I of the N.I.R.A. until April 1,
Senator Clark (D, Mo.), during the discussion of S.J. Res. 113,
gave voice to a complaint frequently made when he said that the NRA
had maneuvered to avoid a Supreme Court decision. CR 74:1: 7482.
Cf. Donald Richberg, The Rainbow. 1936, p. 209ff.
^ The quoted words are from a different context in The Rainbow.

p. 219.
1
1936 with two changes. "Price fixing" was to be prohibited with
a certain exception; and it was stated that "no code of fair com
petition shall be applicable to any person whose business is
wholly intrastate" — a reference to codes which were probably

~ g
not enforceable under the N.I.R.A. as it stood. Thus, the Senate
Committee proposed, in effect, that Congress re-affirm its policy
of including labor standards within regulations of interstate com
merce. During the three weeks that the Court had the Schechter
case under consideration, the Senate passed the joint resolution
without a record vote; and, in the House, hearings were completed
on a joint resolution which assumed, as the Senate resolution did,

3
that Congress had power over labor standards.
The Senate's resolution, which a conference of the majority
had decided to support, was the product of cooperation between
opponents of the NRA and luke-warm advocates and represented a

failure to reconstruct Title I or to propose a restoration of cer-
The hearings are cited above, p.*?<fr fh. 3 • The Committee

voted 16 to 3 to report S.J. Res. 113. CR 74:1: 6688.
2 See Senate Report No. 570. 74th Cong., May 2, 1935, p. 1.
3 S.J. Res. 113 passed the Senate on May 14, 1935. CR 74:1:
7482. Two days later, the Senate passed the Wagner labor re
lations bill, also based upon the commerce power, by a vote of
63 to 12. CR 74:1: 7681.
H.J. Res. 295 extended Title I, with amendments for two years.
CR 74:1: 7890. The House Ways and Means Committee also had S.J.
Res. 113 before it. The hearings are cited above p.«?(^fn. 3
a yp
tainty by extending the act for two years.1 With uncertainty
continued for a few months, said Senator LaFollette, " . . . there
will not be enough left of N.R.A. to wad a shotgun"; and the Ad-
22
ministration agreed. The sponsors of the resolution did not claim
that they had formulated permanent policy. "June 16 is rapidly
approaching,” said Senator Pat Harrison, chairman of the Finance
Committee; and the Committee, facing the practical problem of
securing agreement, had adopted a compromise suggested by Clark
of Missouri.3 What is briefly of interest here is the argument
of the resolution's sponsors because it illustrates the use of

constitutionality by non-conservative as well as conservative op
ponents of economic legislation. Clark of Missouri, a staunch
supporter of Black's early thirty-hour week bill but an opponent

of NRA and its apparatus of codes explained the resolution as
follows:
The members of the subcommittee which had prepared the resolu

tion were Harrison, Clark (D, Mo.), and Hastings (R, Del.). CR
74:1: 7473. Clark and Hastings had voted against the N.I.R.A.
According to Senator LaFollette, introduction of the resolution
had been preceded by extensive negotiations between "the alleged
proponents and the avowed opponents of N.R.A.” For LaFollette's
remarks, see CR 74:1: 7481-7483. LaFollette had been one of the
dissenters when the Finance Committee voted to report the resolu
tion. His complaint was that the Committee had failed to write
”a constructive piece of legislation.”
2 CR 74:1: 7482* See the testimony of Richberg, Hearings before
the Cnmmlttee on Ways and Means . . . May 20-24, 1935, p. lOff.
Senator Huey Long supported the resolution "not to help the

N.R.A., but because I think it dehorns and gums-it up a little.”
CR 74:1: 7471.
3 CR 74:1: 7470-7471.
• • • the purpose of this joint resolution is simply
to extend the status quo as far as possible, cutting
out the most obvious of the devices developed by the
N.R.A., until an opportunity is afforded for a deci
sion by the Supreme Court of the United States which
will tell us what parts of the N.R.A. are constitu
tional and what parts are not constitutional, so that
Congress may proceed intelligently to decide what parts
of N.R.A., if any, they desire to continue, and what
parts they desire to outlaw by law.1
Donald Richberg, the chief spokesman of the N.R.A. at the
hearings was later to write: "Political opponents adopted the

clever, although misleading, strategy of opposing any revision
of the Recovery Act until the Supreme Court had an opportunity to

O
'guide' them by an opinion construing the existing law."* The
strategists were, indeed, agreed on producing a joint resolution

3
which was "pusillanimous." Their motives, however, were not
uniform either with regard to policy or to the judicial guidance

that was hoped for. Senator Harrison awaited judicial decisions
"upon certain phases of the subject" which he did not define during
the debate although he Indicated that they included judicial clari
CR 74:1: 7476. The resolution, Clark said later, provided for

"a temporary extension to enable and in a way to force a decision
by the Supreme Court." CR 74:1: 7476. See also CR 7471, 7474,
7477.
Senator Harrison stated that he hoped for a Supreme Court

decision before the expiration of the joint resolution. CR 74:1:
7476. Did he expect a favorable decision? "There are • • • cases
now pending before the Supreme Court," Harrison said, "At the next
session of Congress we can then more certainly and clearly write a
law which will be upheld by the courts. I hope the present law
will be maintained by the court and construed to be constitutional
and legal; but if we should find anything wrong, we should be in a
position where we could frame legislation much better than at the
present time." CR 74:1: 7471.
2 Sii* 2 1 7 .
3 "Pusillanimous" is LaFollette's word. CR 74:1: 7488.
fication* of the act's applicability to the " 'open-price system*"'
Couzens of Michigan mentioned the need for clarification of "our
constitutional jurisdiction with respect to wages, hours of labor,

g
and interstate commerce." In referring to the constitutionality
of labor standards, Couzens was exceptional during the debate.
Clark, on the other hand, although he spoke of the necessity of
having the Court "say what Congress may do," did not refer in
particular to labor standards; nor did he appear to have any doubts
•2
that the regulation of those standards was constitutional. He
was, he said, like Borah and Senator Shipstead of Minnesota, "very
bitterly opposed" to narrow notions of price fixing,*^ ‘’The whole

purpose of the joint resolution," Clark explained, ". • . is to
get away from the definitions of a lot of things as fixed by Mr.
Richberg • . • and to get court definitions of the same terms."
Thus, there were varying hopes as to what the Court would say.
There was also uncertainty about whether the Court would hand
down, in the words of Senator LaFollette, "a very broad decision."
1 CR 74:1: 7471, 7476.
® Couzens did not elaborate. CR 74:1: 7479. Couzens, a Repub

lican from Michigan, had voted for the Black bill in April 1933.
® The quotation is in CR 74:1: 7482,

4 QB ?4:1: 7476. Shipstead (F-L) was so opposed that he an
nounced that he would vote against the resolution because of the
limited price-fixing which It allowed. CR 74:1: 7480.
5 CR 74:1: 7476-7477.
But no one, not even LaFollette, the most stringent critic of the
resolution and what he conceived to he Ma complete surrender of
• . • legislative responsibility,11 denied that there would be
usefulness in the Court's saying something#*1"
^ See especially CR 74:1s 7482-7483#
•27*
E. The special case of child labor
Shortly after the enactment of the N.I.R.A., President
Roosevelt cited the cotton textile code as an example of what

was possible through cooperation and said of its abolition of
child labor: . • this monstrous thing which neither opinion

nor law could reach through years of effort, went out in a flash.
Not all of the evil was reached under the N.I.R.A., but during
the period preceding the Schechter decision, child labor "practi-

g
cally disappeared from manufacturing and trade." The nearly two
years during which the codes were in operation gave advocates of

child-labor reform a breathing spell in which to anticipate the
problem of permanent legislation. Some hope arose that a new
child-labor law would be upheld in spite of the Dagenhart deci

sion. ‘'I believe," said Senator Wagner on January 26, 1935, "that
the changes in our economic philosophy and the more liberal com-
position of our judiciary today would lead to a happier result."
Yet Wagner, the Administration, and the National Child Labor Com
mittee urged ratification of the Child-Labor Amendment rather than
"That makes me personally happier," said Roosevelt, "thate any

other thing with which I have been connected since I came to Wash
ington." New York Times. July 25, 1933, p. 2.
® 41 Monthly Labor Review 1490 (Dec. 1935).
3
CR 74:1: 1785. On January 3, 1935, Representative Kvale
(F-L, Minn.) re-introduced the bill to prohibit child-made goods
in interstate commerce which he had introduced during considera
tion of the N.I.R.A. H.R. 2816, CR 74:1: 54.
In the Interim, only one other child-labor bill had been intro
duced: H.R. 6184 by Rich (R, Penn.), "to regulate employment of
enactment of another law.'*’ ". . . there is no reason,*' said Wagner,
"for talcing any risk that might subject a great cause to another
g
set-back and delay the final triumph for another decade."
Support for the Amendment was due only partly to fear of
the Court, however. Nor was that support considered to be an ad
mission, by implication, that Congress had given up all belief in
the constitutionality of a national child-labor law; the Amendment,
which authorized regulation of all child labor, was preferable to
a commerce-power child-labor law on the ground of coverage and to
a tax-power law on the ground of directness. The drive for rati
fication, which became accelerated after enactment of the Recovery
Act, was mainly the result of preference for the Amendment and an
optimistic and practical political estimate of the chances of its
success. "In the child-labor field," said President Roosevelt,
persons under 18 years of age and to provide minimum rates of com

pensation to be paid employees." In January 1933, Rich had ad
vocated legal minimum wages but had stated that a constitutional
amendment was necessary* See Hearings . . . on H.R. 1 4 1 0 5 . 72nd
Cong., 2nd Sess., p. 37.
During the five months between the introduction of the Kvale

bill and the Schechter decision, only two child-labor bills were
introduced, both by Rep. Ellenbogen (D, Penn.). On March 26, 1935,
he introduced H.R. 7017 to bar from the mails all child-made goods
and all matter pertaining to such goods. CR 74:1: 4490. Use of
the postal power was being proposed because Ellenbogen considered
a commerce-power bill and a renewed N.I.R.A. too narrow rather than
unconstitutional. See CR 74:1: 4882-4883. On April 25, 1935, he
introduced H.R. 7738 to prohibit the shipment in interstate commerce
of child-made goods* CR 74:1: 6437.
1 The Child-Labor Amendment (H.J. Res. 184), adopted by Congress

on June 3, 1924, empowered Congress "to limit, regulate, and pro
hibit the labor of persons under eighteen years of age." 43 Stat.
670.
2 CR 74:1: 1785.

4 76
about seven months before the expiration of the N.I.R.A., ratifi

cation of the Amendment was "the obvious method of maintaining the
present gains."'*’
Not until early in 1934 had Roosevelt publicly endorsed the
g
drive toward ratification. The "almost sensational comeback"
which the moribund, if not dead, Amendment had staged in 1933 may
have made obvious the fact that the Amendment was not a lost cause
5
and that energy could successfully be directed in its behalf.
At the beginning of 1933, eight-and-one-half years after having
been proposed by Congress, the Amendment had been ratified by
only six States and had been rejected by twenty-six*^ The 1932
Letter of November 8, 1934 to the Secretary of the National

Child Labor Committee. The American Child. Vol. 16, No. 9, p. 1
(Dec. 1934).
2 According to The American Child, a publication of the National
Child Labor Committee, Roosevelt had made "no definite statement"
about the child-labor amendment during the presidential campaign
although he had come out strongly for a sixteen-year age minimum.
Vol. 15, No. 9, p. 2 (Dec. 1933). The issue of December 1933 also
quoted a recent report that it was "'understood'" the President
hoped for ratification. Loc. cit. In a letter of January 27, 1934
to the N.C.L.C., Roosevelt advocated making standards permanent
but'did not commit himself with regard to the Amendment. Ibid..
Vol. 16, No, 3, p. 1 (March 1934). In a later letter, however,
he spoke "the long-awaited word." Loc. cit.
® The quotation is from The American Child. Vol. 15, No. 4, p. 2
(April 1933), which noted that in New England there had developed
"some feeling" that the child-labor amendment no longer went far
enough. It was now "'too narrow'" the Springfield (Mass.) Republi
can was quoted as saying, "'to satisfy those who want Congress to
regulate the adult labor of both sexes•'" Loc. cit.
4 Loc. cit. and 37 Monthly Labor Review 556-557 (Sept. 1933).
party platforms had ignored it,and a conference called by the
Children's Bureau in December 1932 had confined itself to recom
mending State legislation.'*" Yet, although there was "no united
national drive for ratification," four additional States ratified
in the first three months of 1 9 3 3 The total was twelve States
when the N.I.R.A. was enacted; and, in spite of the new argument
that the Amendment was no longer necessary, twenty States had ra-
3
tified by the end of 1933 and "the half-way mark" was passed.
Since there was difficulty in enforcing the codes which cov
ered intrastate business, the argument that ", • . w e must rein
force them to the utmost" was used in behalf of the Amendment.4
Thus, in a constitutional sense, the Amendment was considered to
be supplementary rather than contradictory to the codes. The main
**■ See above p.«?07, fn. A • For the conclusions of the Child
ren's Bureau conference, see CR 72:2: 1164-1167.
2 The quotation is from a letter written by Frances Perkins to

the New York Times. June 20, 1933, p. 18, See also ibid.. March
23, 1933, p. 5.
3 Ibid.. June 20, 1933, p. 18* See The American Child. Vol. 15,
No. 6, p. 2 (Sept. 1933) with regard to the argument that — in
the words of the New York Times — " 'The code makes unnecessary a
constitutional amendment. The NRA was, indeed, given much credit
for the renewal of interest in the Amendment. Ibid.. Vol. 16, No.
1, p. 1 (Jan. 1934).
The rapid addition of four States toward the end of 1933 pro
voked President Nicholas Murray Butler of Columbia University to
renew his attack on the Amendment and to subject the Amendment it
self to constitutional criticism — namely that it had been rejected
by twenty-six States between August 1924 and March 1927 and had
also lost vitality through the lapse of time. New York Times.
December 28, 1933, p. 18. See also ibid.. Dec. 24, 1933, VIII,
p. 2. A brief by Professor Joseph Chamberlain of Columbia University,
and others, in defense of the Amendment's vitality was inserted in
the Congressional Record on February 8, 1935. CR 74:1: 1737-1738.
4 Senator Wagner, CR 74:1: 1785-1786.
emphasis, however, was to secure ratification in order that the
codes could he supplanted. During 1934, few State legislatures
were in session; and the National Child Labor Committee looked
forward enthusiastically to 1935 as "a crucial year,"1 But when
the Schechter decision was handed down, only four additional States
had ratified,2 The two-thirds mark had been reached, but there
were still twelve States to go.
^ The American Child, Vol, 15, No, 6, p, 2 (Sept, 1933),
2 Ibid., Vol. 17, No. 5, p. 2 (May 1935).
ct7f
III From May 1 955: the "horse-and-buggy" statement

To May 1957: the Resignation of Justice Van Devanter
A. Introduction
When the Supreme Court decided in the Schechter case on
May 27, 1935 that the NRA codes were unconstitutional, there came
to an end the first attempt to establish national wage and hour
standards and the third attempt to establish national child-labor
standards President Roosevelt Immediately ordered code en-

g
forcement to be stopped; and, in a famous press conference four
days later, he declared; “We have been relegated to the horse-
and-buggy definition of interstate commerce." Roosevelt's esti
mate of the Court's opinion provoked sharp and emotional disagree
ment. There was widespread agreement, however, with "the ultimate
objective" which the President avowed: "national standards for
the working population of the United States."^ Support for this
objective was not abated by invalidation of the NRA, but no general
labor standards bill was sponsored by the Administration in 1935,
following the Schechter case, or in 1936. Not until two years after
^ A. L. A. Schechter Poultry Corp. et. al. v. United States, 295

U. S . 495.
2 New York Times. May 28, 1935, p. 1.
3 May 31, 1935•

The Public Papers and Addresses of Franklin D.
Roosevelt, 5 volumes, 1938; Vol. IV, p, 221. (Hereafter cited~as
Public Papers.)
4 June 4, 1935. Ibid., Vol. IV, p. 230.
cZ$0
the Court's decision was such a hill forthcoming, on May 24, 1937,
when Roosevelt announced to Congress that "the time has arrived.
During these two years, the Court demonstrated its dlsappro-

2
bation of the New Deal in a series of major decisions, the poli
tical parties prepared for and fought a national campaign, the
Democrats won an impressive victory at the polls, Roosevelt intro
duced his famous Court plan, the Court indicated a new dispensation,
and Justice Van Devanter announced his retirement. Constitution
ality, meanwhile, achieved a new importance in public discussion
and Congressional debate. All of these familiar political and
judicial developments affected — or were affected by — the course
of legislative movement toward the labor-standards objective. What
new clarity or confusion marked that movement? And how much of the
two-year delay (before the Administration's Introduction o f the
fair labor standards bill) was due to the Court?
1 CR 75:1: 4960.
2 The "hot oil" case of January 7, 1935, which held void one
section of the N.I.R.A., has been noted above, p. • Three
weeks before the Schechter case, five judges had held that the
Railroad Retirement Act violated due process and did not come within
the commerce power. Railroad Retirement Board v. Alton Railroad
Co., 295 U.S. 330, May 6, 1935. On the day when the NRA fell, the
Court was unanimous and ruled unfavorably on two other cases af
fecting the New Deal. Louisville Joint Stock Land Bank v. Radford,
295 U.S. 555, holding invalid on due process grounds the Frazier-
Lemke Act for the relief of farm mortgagors. Humphrey's Executor
v. U.S., 295 U.S. 602, concerning the president's power of removal.
For decisions on the Agricultural Adjustment Act, the Bitumi

nous Coal Conversation Act, and also the New York mini mum-wage law,
see below, pp.
B. The meaning of the Schechter case
1. The Schechter decision
The unanimous decision of the Supreme Court on the N.I.R.A.
was indisputably clear with regard to the Schechter Poultry
Corporation and the Schechter Live Poultry Market, corporations
operating wholesale poultry slaughterhouse markets in Brooklyn#
So far as the Schechters were concerned, their poultry was no
longer in the flow of interstate commerce and their transactions
were intrastate and affected interstate commerce only indirectly#
Therefore, the Schechters were not subject to "the coercive exer
cise of the lawmaking power" which was involved in the Live Poultry
Code and its minimum wage, maximum hour, and trade practice pro
visions# There was a second ground on which the Schechters were
upheld, a ground which was also indisputably clear with regard to
NRA codes generally; the President's code-making authority was an
unconstitutional delegation of legislative powere
After reading the Court's opinion "very carefully" and finding
that the Court had spoken "very clearly," Senator Black expressed
a conclusion which appeared to be unanimously agreed upon. It was
"impossible," he said, "to revive or resuscitate the National Re
covery Administration in the form" which it had had.1 There was
also agreement that, in the words of the President, "the delegation
of power is not an insurmountable object, and undoubtedly an Act
1 May 28, 1935. CR 74:1s 8898.
could be written • . • • But "the most important implication”
of the opinion, as Roosevelt went on to say in his lecture to the

g
press, related to interstate commerce. Cfci this score, too —
that the opinion was important mainly with regard to interstate
commerce — there was agreement. How clearly one could draw in
ferences from the Court’s opinion was another matter. As far as
Chief Justice Hughes was concerned, speaking for the Court, the
“well-established distinction between direct and indirect effects”
upon interstate commerce was ’’clear in principle" although "the
precise line can be drawn only as individual cases arise."3 That
there was clarity, also, in the popular mind, at least with regard
to general principle, is suggested by the New York Times' headline:

4
"New Deal Required to Stay Within Constitution." On another page
of the Times, however, another headline read: "Whole of New Deal

5
Program in Confusion." An examination of that confusion is, in
part, the purpose of the pages which follow.
1 Public Papers. Vol. IV, p. 207.

2 Loc. cit. Little public comment was directed to the^words
with which the Court dismissed the argument that emergency justi
fied action. The Court spoke clearly about the principle: "Extra
ordinary conditions may call for extraordinary remedies • . • •
Extraordinary conditions do not create or enlarge constitutional
power." 295 U.S. 495 at 528.
3 295 U.S. 495 at 546. Cf. below p. J6>6> , fn.
^ May 28, 1935, p. 21. 5 Ibid., p. 1.
2. The Schechter dicta
The Court’s invalidation of the President's code-making
authority had a more immediate effect than the dicta which the
Court laid down to support its drawing of a "precise line," Not
one but all the codes were unenforceable, and this consequence
brought forth a reaction which was to be expected from friends
and enemies of the NRA. The decision was "a great misfortune,"
"one of the worst blows ever given to the laboring people."^
Others thanked God for the Constitution and the Supreme Court,
and Senator Huey Long raised his hand "in reverence to the Supreme
g
Court that saved this nation from fascism," Those who had op
posed the NRA on constitutional grounds felt "vindicated" or spoke
in the manner of Representative Treadway of Massachusetts: " . . .
it Just goes to show that we lawyers were right all the time."
But these reactions to the Court's opinion did not necessarily in
dicate whether positive or negative inferences had been drawn as
to the constitutional feasibility of national labor standards
"*■ See the remarks of Sen. Neely (D, W. Va.), New York Times,
May 28, 1935, p. 20 and Rep. Dunn (D, Penn.), CR 74:1: 8897. See
also Rep. O'Connor (D, N. Y.), CR 74:1: 8873.
Q
Sen. King (D, Utah) and Sen. White (R, Me.), for example,
thanked God for the Constitution and the Supreme Court respectively.
CR 74:1: 8299; New York Times, May 28, 1935, p. 20. For Long,
see ibid.. June 2, 1935, p. 28.
3
See the remarks of Sen. Gore (D, Okla.), CR 74:1: 8334. For
Treadway, see New York Times. May 28, 1935, p, 20.
<*8*1 ''
legislation, Senator Long, together with Clark of Missouri, who
had reacted to the Court's opinion with equanimity, was soon
advocating the Black-Connery bill;1 and Republican leaders were
talking vaguely of action to salvage labor standards in accord
ance with the Court's opinion.
Diere were dicta in the opinion which appeared to circum
scribe interstate commerce narrowly — including a quotation from
an earlier opinion, which contained the words "building is as

- 2
essentially local as mining, manufacturing, or growing crops."
These words were specially noted by Senator Austin on the floor of

3
the Senate on the day after the decision. On the other hand, the
Court had not placed labor standards clearly beyond thereach of
the commerce power, as it had in the Utagenhart case with regard
to the prohibition-of-shipment formula. Senator Connally, who was
one of the few to compare the Dagenhart and Schechter decisions
explicitly in the days following the latter decision, observed that
"the child-labor decision went much further."^ Indeed, there was
no reference to the Dagenhart decision in Hughes' opinion. Between
1 "I had assumed," said Clark, "that the question of Federal

and State government under the Constitution had been settled for
150 years." New York Times. June 1, 1938, p. 7,
2 295 U.S. 495 at 547.
3 The Court had "reiterated," said Austin, what was "well settled."
CR 74:1s 8300, Newspaper reports of the decision had drawn popular -
notice to the Court's exclusion of "mining, agriculture, and manu
facture." New York Times. Ma y 28, 1935, p. 1.
^ New York Times. June 1, 1935, p. 7.
Z8S-
Austin's broad view of the zone which the Court forbade Congress
to enter and the narrow view of men like Senator Barkley who noted
that the Court had ". . • emphasized the facts in a particular
case," there was a large difference in degree.1 Yet, with various
notions of what was "intrestate" in mind, and with some suspended
judgment as to what was "practicable," leading members of both
parties saw the avenue of the commerce power still open.
1 The Court had left ". • . a plain implication," said Barkley,

"that if a case should be presented where some form of intrastate
commerce affected interstate commerce directly the decision of
the Court might be different." CR 74:1: 8300.
3. Congressional leaders and the commerce power
Immediately following the Court’s decision, the Senate’s

majority and minority leaders declared that the N.I.R.A.. could he
revised within constitutional limits. Of course, "purely intra
state transactions," said Rohinson, could not be reached; and in
terstate transactions, said McNary, could be reached through
"legislation of a voluntary character."'*’ Three days after Roose
velt’s "horse-and-buggy" statement, Senator Borah, speaking over
the radio, assured the country that there was "plenty of power,
absolute power, to deal with all national problems";2 and, in a
later radio address, Senator Wagner expressed his belief that there
was not "a single letter in the Schechter decision which makes it
impossible for the Federal Government to cope in any way with eco-
nomie problems that challenge the whole nation." Others, with
various degrees of respect for the Court, expressed agreement.
Senator O'Mahoney of Wyoming found the Constitution itself "entirely
adequate" and lacking in "fine-spun theories • • • about direct and
^ In a statement issued on the day of the decision, Robinson said

that the Court's test of directness presented " . . . practical dif
ficulties in connection with the regulation of-hours and wages of
labor; but this difficulty was not unforeseen before the decision
was rendered.” New York Times. May 28, 1935, p. 20. On the fol
lowing day in-the Senate, Robinson remarked that revision was "en
tirely practicable." CR 74:1: 8298.
With regard to McNary, see New York Times. May 30, 1935, p. 12;
June 1, 1935, p. 7.
2 CR 74:1: 8299. For the text of Borah's radio address, see New
York Times, June 3, 1935, p. 2. The quotation in the text above,
however, is from ibid., June 1, 1935, p. 7.
3 York Times. June 14, 1935, p. 2, See also his statement
to the press, ibid., May 30, 1935, p. 12.
*87
indirect effects. Senator George of Georgia saw “nothing in

the decision which has not been well-recognized law from the be>
ginning.*'2 George, in particular, appeared to have no doubts.
Mr* President, undoubtedly the N.R.A. can be renewed,

but it can only be renewed by the Congress itself
writing the code or writing the formula . . • and it
must be applied only to interstate commerce. That is
all the Supreme Court has said."
Among the Republicans, Borah, for example, believed that

4
codes could be "imposed upon those engaged in interstate commerce";
but the minority, for the most part, did not appear certain that
coercion was constitutional. Many favored voluntary agreements —
"if they are fair and constitutional and not monopolistic" —
under the supervision of the Federal Trade Commission. This policy
was expressed in a remarkable statement soon after the Court's de
cision. On the day of the decision, Representative Treadway, rank
ing minority member of the Ways and Means Committee, had remarked,
1 CR 74:1i 12552.
8 CR 74:1: 8299.
3
CR 74:1: 8300. The difficulty has been, said George, that
Congress had tried to circumvent "the very clear application of
well-decided constitutional principles." CR 74:1: 8299.
^ CR 74:1: 8299. According to Senator LaFollette (Prog., Wls.) ,
an erstwhile Republican, Congress could, . .of course . . .
attempt to set up the necessary standards." New York Times. May
28, 1935, p. 20.
5 The quotation is from the remarks of Rep. Jenkins (R, Ohio),
one of the signers of the report referred to in the text below.
CR 74:1: 8880.
"It would take a lot of writing to make a new law. Within two
weeks, however, he and his six colleagues submitted a minority re
port on a resolution to extend the life of the NRA as an organiza
tion (discussed below) which stated that "the N.I.R.A. has a num
ber of beneficent and commendable features which might well be pre-
£
served by permanent legislation within constitutional limitations."
To that end, the minority favored "an investigation of the possibil
ity of" authorizing the F.T.C. to approve trade agreements. The
report continued:
We believe that such approval should be contingent upon the

Inclusion in such agreements of provisions against unfair
methods of competition . . . and the employment of child
labor, and provisions for maximum hours of employment,
minimum rates of pay, and the guarantee to employees of
the right to bargain collectively . . . .
Whether members of the minority, and others, favored the

non-compulsory approach because of uncertainty about constitutional
power was not made clear.4 There was, it seemed, an undefined
area of industry which was closely enough related to interstate
commerce to justify a policy of protection from anti-trust prosecu
tion yet not clearly enough related to justify Congressional imposi
^ New York Times. May 28, 1935, p. 20.

® See House Report. No. 1115. June 6, 1935, 74th Cong., 1st Sess.,
(pp. 1-7), p. 7.
® Loc. cite
4 Sen. Harrison (D, Miss.), chairman of the Finance Committee,
remarked on May 27 that "the decision greatly clarifies the situ
ation" and suggested that a system might be worked out that was
voluntary with regard to wages and hours and mandatory with regard
to child labor. New York Times. May 28, 1935, pp. 14 and 20.
J8f
tion of labor s t a n d a r d s W h a t did seem clear was that consider

ations of constitutionality and of policy were mixed. Even Senator
Hastings, who was explicit about the inadequacy of national power
to "compel any single minority member" to conform to a code, was
in favor of permitting industries to enter into codes approved by
£
the Federal government. This was, he said, "the American principle."
Was the Schechter decision considered to be a barrier to fur
ther legislative movement on the avenue of the commerce power? The
Congressional reaction which has been described thus far suggests
clearly that the answer was no. By carefully limiting a new act
to activities which directly affected interstate commerce (assuming
enough activities would be covered to make such an act worth-while)
or, perhaps, by the prohibition-of-shipment formula, Congress might
try again to establish national labor standards. The latter ap
proach was advocated once again by both Black and Connery.3 On the
•*- Compare the statement in the report of the House Labor Com
mittee on the Wagner labor relations bill following the Schechter
case: "It is believed that the cases which have sustained Federal
intervention in labor disputes under the anti-trust laws are broad
enough to sustain this bill . . . ." House Report No. 1147. 74th
Cong., 1st Sess., June 10, 1955, (pp. 1-35), p. 9.
^ A ten percent minority of "chiselers . . . will always exist in
the country," said Hastings (R, Del.). "That is a part of America,
and we cannot get rid of it, and the Supreme Court has made it very
definite to every thinking person." CR 74:1: 8298.
3 Connery declared over the radio on May 31, 1935 that the Court's
decision was not unfavorable to a bill which he would present and
that the amendment procedure was too slow0 CR 74:1: 8536-8537.
See also CR 74:1: 8885. In January 1933, during hearings on his
first thirty-hour bill, Connery had remarked to a witness: "Would
it not be more expeditious to pass this proposed law or the Black
bill and put it up to the Supreme Court, and in the event of an tan-
favorable decision from the court, to propose a constitutional
amendment?" Hearings . . . on H.R. 14105. 72nd Cong., 2nd Sess.,
p. 98.
1
9o
day after the decision, Black -urged in the Senate —
• • . that Congress at the earliest possible time,

recognizing the supremacy of the opinion rendered
by the Supreme Court under the Constitution, should
proceed to legislate in a direction in which it does
have power, along lines such as those provided in the
bill which was favorably reported by the Committee-
on the Judiciary, and which is pending here today.
. absolutely not one sentence and not one word in the opinion
written by the Supreme Court," said Black, " . . . stands as an
2 *
obstacle." Black did not supplement this literal and negative
reference with any reference to the spirit of the opinion or to
3
intimations of judicial sympathy in the future. There was a
prompt reply by Senator Hastings. Whether Hastings looked to
the words or to the spirit of the Court's opinion was not clear,
but his conclusion was emphatic: Black's bill was "very much more
clearly -unconstitutional than the act which was declared to be so
by the Supreme Court yesterday.^
Many members of Congress, as well as Black and Hastings,
claimed that they saw light in the Court's opinion or, at least,
no added shadows of doubt on the path ahead. But since some mem
bers looked narrowly at the decision in the Schechter case and
1 CR 74:1: 8298.
g
loc. cit.
3 Perhaps the very unanimity of the Court was encouraging to
Black. That unanimity suggested that the issue was less difficult
than the issue in the Dagenhart case. In his concurring opinion,
Justice Cardozo found "no penumbra of uncertainty obscuring judg
ment here." 295 U.S. 495 at 554.
4 CR 74:1: 8298.
others looked "broadly at the dicta (a choice which, practically
speaking, had not been available with regard to the Dagenhart
case), the conclusions which were reached were conflicting and
the overall picture of proposals for future action was one of
confusion. Individual sentiment also became somewhat clearer
with regard to the adequacy of the Constitution as it stood and
the inviolability of the Supreme Court; but on these questions,
too, opinion in general appeared to be confused rather than clearly
divided. The motives which impelled legislators toward one direc
tion or another were complex, of course, and were affected by
other than judicial developments. Political considerations and
the position of the President, for example, were important. It
is relevant, therefore, before Congressional debate and action
are examined further, to ask at this point: what was the reaction
of the President to the Court's decision and opinion?
4. Roosevelts reaction.
When the Supreme Court held the NRA unconstitutional, said

Senator Truman a year later —
How did President Roosevelt take that? He had a had

day when he saw this mainstay of his program discarded.
One bad day — count it — one. Would you begrudge him
that day of mourning? And when that day passed, he took
this body blow, this solar-plexus attack, just as he had
taken his other misfortune — with a smile. Again he
was cheery and blithe; again he was the 'bonhomme' Roose
velt of the day before
In his "horse-and-buggy" press conference, Roosevelt had, indeed,

declared that ". . . the implications of this decision are • . .
more important than any decision probably since the Dred Scott
case.” But he denied that he "resented” the decision — "Nobody
resents a Supreme Court decision";'-’ and he gave no indication
that he had any sympathy for a course of action directed at the
power of the Court. Nor did he give any encouragement to sugges
tions that the Constitution be amended. But what action he pro
posed was not yet ready for announcement although four days had
gone by since the Court's decision.4
Address before the Democratic State convention at Joplin,

Missouri, May 5, 1936. CR 74:2: 7458-7459.
2 Public Papers. Vol. IV, p. 205. The Court had, indeed, been
concerned with "a question of fact," said Roosevelt. But it had
gone further. "In fact the Court in this decision, at leastby
dictum . . . has gone back to the old Knight case in 1885 Csi(3 »
which in fact limited any application of interstate commerce to
goods in transit — nothing elsei" Ibid., p. 208.
Roosevelt's remarks lasted one hour and twenty-five minutes.
New York Times. June 1, 1935, p. 1.
s Public Papers. Vol. IV, p. 205. 4 See ibid..p. 222.
During an intervening press conference, Roosevelt had re
marked, without further comment, " . . . I suppose that we have
had fifty different suggestions. They go all the way from abol
ishing the Supreme Court to abolishing the Congress, and I think
abolishing the President."1 Serious proposals for Immediate
legislative action had been made in Congress, as already noted.
Similar suggestions came from Administration circles. On the day
after the decision, Secretary Perkins had called a conference of
"some of the leading legal figures in the Administration," and
there had emerged a "consensus":
that . . . the decision was not to be taken as meaning

that industries producing goods for interstate commerce
rather than for local markets were beyond the pale of
congressional regulation so far as labor conditions were
concerned.^
Accordingly, the President was urged to consider new legislation;

but, Miss Perkins has said, he "acquiesced" in the view of Attor
ney-General Cummings, who "was certain that the Court’s opinion
had destroyed further congressional action along that line."
Other lawyers as well as Cummings had spoken to the President;
and " . . . they are pretty certain," said Roosevelt to Perkins,
"that the whole process is unconstitutional and that we have to
study and revise our whole program." Choosing sides among the
lawyers was facilitated, it would seem, by Roosevelt’s relative
satisfaction with the status quo. The NRA had accomplished what
1 May 29, 1935. Ibid., pp* 199-200.

^ The words omitted from the quotation in the text were inac
curate: "although the majority opinion had cited Hammer v. Dagen-
hart with-approval." For the quotation in the text and the re
mainder of the paragraph, see Perkins, op., cit.. p. 252.
A9i
it could to revive industry, he believed; and a return to old wage

levels was doubtful*
Roosevelt could have forged ahead toward the labor standards
objective If there had been any well-defined policy with wide sup
port (wider than that for the thirty-hour week bills) which he
could endorse and if he had been prepared to read the Schechter
decision narrowly and thereby accommodate himself to the Court*
No new policy was ripe, however. Alternative policies, to be noted
later, were available. Furthermore, by accepting "the obiter dicta
and all the phraseology" of the Court's opinion (like Senator
Austin, Roosevelt took at face value the parenthetical words in
cluded in a statement quoted by the Court — "building is as es
sentially local as mining, manufacturing, or growing crops") and
interpreting it as a denial of national power over national pro
blems, not only did he appear to be conforming strictly to the word
of the Court; but also he was enabled to speak in behalf of the en-
tire New Deal effort and to shift blame to reactionary judges.x "In
some ways it may be the best thing that has happened to the country
for a long time that such a decision has come from the Supreme
Court," Roosevelt said to the press, "because it clarifies the
issue."2
^ For the quotations, see Public Papers. Vol. IV, pp. 211, 218.
2 Ibid., p. 219. Die abstract issue as to constitutional power
was translated into flesh-and-blood terms by Representative Truax,
an Ohio Democrat: "As between the Court and Roosevelt, I am for
Roosevelt 100 per-cent. As between the $20,000-a-year ruler for
life, I shall support the man who must every 4 years be responsible
to the will and votes of the people. The question is upon which
side we will be found? . . . . Eve ry plutocrat, every m i l l i o n
aire, every c o r p o r a t i o n l a w y e r will be with t h e Court . . . .
E v e r y oppressor and exp loi ter of l abor will applaud the decision
I propose to stand w i t h wageworkers and farmers." CR 74:1: 8886
Another Democrat, M a r t i n of Colorado, testified that the Presi
dent's press conference had giv en his spirits "a n e w b a p ti sm of
faith." CR 74:1: 6894.
Jl9t>
C. Avenues f>r political energy — 1935-1936
1. Introduction
The political opposition welcomed Roosevelt's "horse-and-

buggy" criticism and the prospect of a political campaign, not
far in the future, in which the Constitution and the Supreme
Court would he rallying cries. Representative Hamilton Fish, Jr.,
of New York (one of the Republicans who challenged the Admini
stration to "at least preserve the benefits for labor — such as
abolition of child labor, sweatshop hours and wages") had already,
on the day of the Court's decision, predicted that "the preser
vation of American constitutional government . . . will be the
major issue of the Presidential campaign of 1936."^ In the year
and a half preceding the election, much political debate ascended
to the higher level of grand constitutional policy. That debate
absorbed some of the energy which had been directed toward the
objective of national labor standards and accompanied new efforts
^ New York Times, May 28, 1935, p. 20. For the parenthetical
quotation, see CR 74:1: 8872.
In the House, a few days after the press conference, Roosevelt's
definition of the issue was seconded on bothsides* "Give me the
old days of the oxcart followed by the horse and buggy in New Eng
land," said Representative Treadway, "when the manhood of the coun
try had its individualism . . . In Treadway's philosophy was
to be found "the clash of conflicting opinion," said Mead of New
York. "The day of rugged individualism is gone . . . . Federal
regulation of interstate busissess must be strengthened to meet
changing conditions of our day." These remarks, said Tarver, a
Georgia D mocrat, ". , .at least have the virtue of frankly pre
senting the issue" — whether to abandon S£ate rights by legislation
or, as the Court in the Schechter case had warned, he said, by con
stitutional amendment. See CR 74:1: 8882, 8890, 8897.
4?7
to approach the objective indirectly — through amendment of the
Constitution, changes affecting the Court, or through uniform
State action. There was action, also, on the Congressional front.
The Adm ini st rat ion extended its support to some pending bills
that represented steps forward, and Roosevelt recommended the
passage of "stop-gap" legislation. These and other measures
were supported, in spite of any apparent contradiction, by many
advocates of constitutional change or of extra-Congressional
action. The latter approaches commanded wide interest; they
were of less importance, however, than some of the avenues of
national power on w h i c h Congress moved.
<*93
2. The Administration's legislative strategy
ao Introduction
Could Congress act to establish labor standards? Logically,
this constitutional question demanded an answer before a second
question was asked: w oul d speedy action by the A dm inistration
be po litically strategic? It seems possible, however, that the
answer to the second question m a y have affected the answer that
was given to the first. At any rate, one group of presidential
advisers, led by General Johnson and including leaders of organized
labor, was in favor of r a pi dly hammering out "a new and better
NRA." 1 Another group, also in favor of a strong NRA, advised
that Roosevelt "let things sweat" in the expectation that after
several months of confusion among the critics and after further
study of the constitutional problem a strong and safe bill could

2
be enactedo For reasons that have already been suggested, the
H e w York T i m e s , M a y 31, 1935, p. 1. Organized labor's stra

te gy was not single-minded. In a sq>eech on June 7, 1935, W i l lia m
Green spoke in behalf of "a substitute measure . . » based upo n a
licensing pla n for corporations engaged in the manuf act ur e and
production of goods and commodities w hich fl ow into and are shipped
in interstate c o m m e r c e 0" He also noted that there had been a
growth of sentiment for "a constitutional amendment whi ch expressly
forbids the Supreme Court to declare an act of Congress u n c o n s t i t u
tional" and added that if n e c e s s a r y the Co nstitution "should be
amended so as to suit the needs of existing economic and social
conditions." F or the text of the speech, see H e w Y o r k T i m e s , June
8, 1935, p» 8.
2
I b i d o , M a y 31, 1935, p. 1. A third group mainta ine d that a
constitutional amendment w a s necessary,,
Re l a t e d to the "let things sweat" school of thought was the

observation of Dean H oward Lee M e B a i n of Columbia University. In order
to gain support for a con stitutional amendment, M e B a i n w as reported
to have said, the Pr esi den t could produ ce sweat by driving through
Congress m a n y bills of "doubtful c ons titutionality," h a s t e nin g them
[ ____________________
R eproduced with permission o f the copyright owner. Further reproduction prohibited without permission.
e?f?
delay and perhaps the expectation were adopted by the President.^

After telling Secretary Perkins of advice he had received "to re-
study and revise our whole program,” Roosevelt added, "Perhaps we
had better do it now. So let's give the NRA a certain amount of
time to liquidate. Have a history of it written and then it will
be over."^
Although the President was not ready to move directly toward
the objective, he gave his support to two holding operations and
two flank attacks, C^hat such action was possible was undoubtedly
one reason why Roosevelt did not move directly.) On June 4, 1935,
he recommended that "a skeleton organization" of NRA be continued
and that persons doing business with the Government be required
3
to meet certain labor standards« The NRA staff would gather in
formation, he said, and would be useful in carrying out the pro
posed requirements. These requirements were "only a very partial
stop-gap” but they would demonstrate the Government's "good faith.1'4
Roosevelt also gave active support, following the Schechter case,
to two pending measures. The Wagner labor relations bill, which
went beyond the affirmations of Section 7 (a) of the N.I.R.A, by
providing procedural guarantees for collective bargaining, was not
directly concerned with wages and hours but was expected to result
in higher standards. The second measure, the Guffey-Snyder bill,
proposed to establish what was often called a "little NRA," includ
ing the regulation of wages and hours, for the bituminous coal in
dustry.
to a judicial decision, and as a consequence: "the more toes that

are trod upon by the firm but gentle feet of the Supreme Court,
the larger will be the number of those who will be prepared for
constitutional amendment." New York Times, June 22, 1935, p. 5.
3oo
See above p cet ?3-*?9V.

O
Perkins, op., clt., p. 253.
^ See Public Papers., Vol. IV, p. 223.
.
4 Ibid.. d p 224, 229. " . . . probably not much over 1 per-cent,
of the industrial production of the country is used in Government
work," said a White House statement. Ibid.. p. 224.
JO!
Tftrtftnslon of the NRA and the Walsh-Healey Act

An emasculated resolution extending the NRA for nine and a
half months and providing that agreements governing wage-hour
and child-labor standards should be exempt from the anti-trust
laws was passed on the day before the scheduled expiration of
the Recovery Act;1 and on August 12, 1935, without a record
vote, the Senate passed the Administration's bill providing Cott
le
ditions for Government contracts. This bill — later known as
the Walsh-Healey Act — was to be the first act since 1919 which
explicitly defined a child-labor standard.3 Extreme critics of
Public Resolution 26 (49 Stat. 375), June 14, 1935. The

resolution repealed all provisions of Title I delegating power
to the President to approve or prescribe codes and providing for
the enforcement of codes. It was reported as "a scrupulous ef
fort to conform the existing act . . . within the legal confines
laid down by the Supreme Court." House Report No. 1115. 74th
Cong., p. 2.
The minority on the House Ways and Means Committee opposed
the resolution on the ground that it was "absolutely devoid of any
constructive thought or suggestion" and deplored the majority's
failure to cooperate "in instituting a study . . . Ibid.. p.
7. For more on the minority's views, see above p.
2 CR 74:1: 12896. With regard to final passage, see below p.
The bill was the product of the Departments of Labor and Justice.
Perkins, op. cit. pp. 248-249, 253; CR 74:1: 12074.
3 The bill in its final form, approved on June 30, 1936, pro
vided that every contract made by agencies of the United Spates
for materials and supplies in any amount exceeding $10,000 should
include the following stipulations, among others: that in carry
ing out the contract no boy under sixteen or girl under eighteen
years of age was to be employed, no person was to be employed
over eight hours a day or forty hours a week, and "notless than
. . . the prevailing minimum wages . . . in the locality" would
be paid. 49 Stat. 2036. The bill originally considered in com
mittee also specified an age limit but otherwise allowed more ad
ministrative flexibility. See Hearings before Committee on Educa
tion and Labor. United States Senate, on S. 5055,74th Cong.,1st
Sess., June 17, 1935, iii-50 pp., pp. 1-2.
OA.
the NRA opposed both measures — the Walsh bill because in its
current form it referred to wage-hour standards "as on May 26,
1935" and because it sidetracked the thirty-hour week bill.'1'
Both measures, on the other hand, were supported not only on
their own merits but also because they pointed the way toward
the objective. "Very frankly," said the Chairman of the House
Ways and Means Committee, one reason for extending the NRA organ
ization was "to find out . . . what more can be done within con-
2
stitutional limits « . . . " The Government contracts bill,
said Senator Walsh, early in August, was the "first step" toward
ending the exploitation "which has gone on . . . since the N.R.A.
was declared unconstitutional."
Neither measure was opposed on constitutional grounds. Op
ponents referred frequently to constitutionality, however. An
extended example is provided by Senator Huey Long's fifteen-and-
one-half hour filibuster against the NRA resolution.^ In the de
bate on the Walsh bill, the use of former code standards and pro
“ For the debate on the NRA resolution, see CR 74:1: 8666-8900.

For the version of the Walsh bill referred to in the text, see
CR 74:1: 12718-12720. With regard to the sidetracking charge,
see below p.
2 Doughton (D, N.C.), CR 74:1: 6683. A majority of the Com
mittee had reported that the resolution conserved "present values,
pending final determination as to the future course of action
which may be found desirable." House Report No. 1115, 74th Cong.,
p. 2. See also the remarks of Representatives McCormack (D, Mass.)
and Connery (D, Mass.), CR 74:1: 8879, 8887.
3 CR 74:1: 12797.
4 Long was attempting to amend the resolution to require that
all appointments of employees receiving more than $4,000 a year
should be confirmed by the Senate. CR 74:1: 9091-9175.
J03
visions for executive discretion were said to violate the spirit

of the Schechter opinion;'1' but when Senator Walsh inserted in
the Record a memorandum on Congress' proprietary power, he ex
plained that he did so "notwithstanding the fact that no consti
tutional question has been raised in the committee or on the
2
floor, as to the constitutionality of the pending bill."
See the remarks of Senators Clark and Long. CR 74:1: 12781-

12785, 12796-12797, 12885, 12890.
2 CR 74:1: 12804-12805. The Walsh bill was "merely broadening
the scope of the Davis-Baeon Act,” said Senator LaFollette. CR
74:1: 12774. That act of March 3, 1931 (46 Stat. 1494) had pro
vided for employees working on public buildings to be paid not
less than the prevailing rate of wages.
3 o *f
The Wagner Act and the Guffey Act

Unlike the Walsh bill, the Wagner labor relations bill and
the Guffey bituminous coal bill were not introduced to fill part
of the statutory void which followed the Court's action on the
codes; both had been introduced early in the session.*1' Nor were
they free of constitutional doubt. The Schechter case seemed to
make dimmer the prospect of judicial approval, but both bills ap
peared to their sponsors to be even more necessary than before.
In the face of constitutional objections, and with the belated
support of the President, the two bills were enacted before the
end of the session.2 The Wagner Act is notable, here, for its
use of a constitutional formula essentially the same as that of
the N.I.R.A., a formula which was to be -urged during the follow
ing months as a basis for a labor standards bill. After the
Schechter case, the Wagner bill (which had passed the Senate by
a non-partisan vote of 63 to 12 eleven days before the Court's
decision and had been reported by the House Committee on Labor)
was recommitted upon the request of Representative Connery and
the following changes, among others, were made; the declaration
of policy was reformulated "to bring it more clearly outside of
Senator Guffey Introduced S. 1417 on Jan. 24, 1935, CR 74:1:

868; and Senator Wagner, S. 1958 on Feb. 21, 1935, CR 74:1: 2368.
An earlier "Wagner bill" had come near passage during the 73rd
Congress. See H. Rept. 1147. 74th Cong., p. 4.
^ National Labor Relations Act, 49 Stat. 449, July 5, 1935;
Bituminous Coal Conservation Act, 49 Stat. 991, Aug. 30, 1935.
With regard to the President's support, see New YorkTlmes, May
28, 1935, p. 17; Perkins, op. cit., 253.
3 CR 74:1: 7681; House Report No. 972. 74th Cong., May 21, 1935.
JOS'
the ruling in the Schechter case” and the definition of interstate
commerce was narrowed so that it did not extend to"practices that

..1
are merely 'related to' or 'indirectly' interstate commerce.”
As finally enacted, the hill empowered the newly-created National
Labor Relations Board to prevent any person from engaging in any
unfair labor practice "affecting commerce," that is, any practice
2
"burdening or obstructing commerce or the free flow of commerce.”
The prohibitions and substantive rights in the Wagner Act
were admittedly applicable only "to the extent of Congress' power
under the commerce clause."® On the other hand, Congress itself
declared in the Guffey Act — the Bituminous Coal Conservation
Act — that "all production of bituminous coal and distribution
by the producers thereof bear upon and directly affect its inter-
4
state commerce." Where the Wagner Act offered an elastic for
mula, the Guffey Act made what the Court was to call an "affirma
tion" and offered a complex legislative scheme which might also
CR 74:1: 8727; House Report No. 1147. 74th Cong., pp. 9, 10.
2 49 Stat. 449, Sec. 2 (7) and Sec. 10 (a). The latter words
in the text above, had not been used in the N.I.R.A. as a defini
tion of "affecting commerce"; they had appeared in the declaration
of policy, however. See above p.
® H. Rept. No. 1147. 74th Cong., p. 7.
4 49 Stat. 991, 992. Section 1 also declared that the mining
and distribution of bituminous coal was "affected with a national
public interest" and that regulation was necessary for "the gen
eral welfare of the Nation." These and other "recitals,"said the
Court later, made clear "except for the pure assumption that the
conditions described ’directly' affect interstate commerce, that
the powers which Congress undertools to exercise are not specific
but of the most general character . . . ." Carter v. Carter Coal
Co., 298 TJ, S. 238 at 290. See also below p. 3 t j r .
k
J0(,
be applied to other Congressionally-designated industries.'*' The

opposition to the "little NRA" was more determined than the op-
2
position to the Wagner Act. On July 6, 1935, the day after that
Act was signed, and in the face of a threatened strike in the soft
coal fields, President Roosevelt sent a letter to Representative
Samuel B. Hill, of the subcommittee in charge, urging passage of
the Guffey bill.^ An examination of the legislative history of
the bill is beyond the scope of these pages; Roosevelt's letter,
however, deserves more than passing notice.
The Act established a National Bituminous Coal Commission, to

be appointed by the President, and authorized it to formulate a
code containing conditions governing organization and production,
marketing and prices, and labor relations. The Act itself pro
vided that all code members should accept the minimum wages and
maximum hours agreed upon through collective bargaining as described
in the act. An excise tax of 15 per cent on the sale price at the
mine was imposed upon the sale or other disposal of bituminous coal;
and any producer who complied with the code was entitled to a draw
back of 90 per cent of the amount of the tax. When the act came
before the Court, the government agreed that the validity of the
tax rested upon the commerce rather than the taxing power. Carter
v. Carter Coal Co., 298 U.S. 238 at 289.
p
The vote on the Wagner bill in the Senate was 63-12; in the
House, the bill was passed without a roll-call vote on June 19,
1935. CR 74:1: 7681, 9731. The Guffey bill was passed in the
House by a vote of 194 to 168; and in the Senate, 45 to 37. CR
74:1: 13666-7, 14084.
® See Public Papers. Vol. IV, pp. 297-298, and New York Times.
July 7, 1935, p. 1.
Joy
Roosevelt and "doubts . . . however reasonable”

The constitutionality of the Guffey bill depended, Roosevelt
said, on whether or not one concluded that the production of
coal directly affected interstate commerce. He restated the ar
gument for believing that it did and. in a final paragraph gave
his opinion of the proper course for the legislator:
Manifestly, no one is in a position to give assurance

that the proposed act will withstand constitutional
tests, for the simple fact that you can get not ten
but a thousand differing legal opinions on the subject.
But the situation is so urgent and the benefits of the
legislation so evident that all doubts should be re
solved in favor of the bill, leaving to the courts, in
an orderly fashion, the ultimate question of constitu
tionality. A decision by the Supreme Court relative to
this measure would be helpful as Indicating, with in
creasing clarity, the constitutional limits within
which this country must operate. The proposed bill has
been carefully drafted by employers and employees work
ing cooperatively. An opportunity should be given to
the industry to attempt to work out some of its major
problems. I hope your committee will not permit doubts
as to constitutionality, however reasonable, to block
the suggested legislation.!
Roosevelt’s letter and, in particular, its last sentence

provoked an outcry comparable to that which followed the "horse-
and-buggy" statement. Warnings of impeachment were sounded in
Congress. A year later, repercussions were continuing when, at
the Republican National convention, the offending sentence was
quoted by Bertrand Snell. " . . . thank God no Republican President,"
1 Public Papers. Vol. IV, pp. 297-298.

g
See the remarks of Representative Rich (R, Penn.), CR 74:1: 11697.
3 of-
he said, "has ever so violated his constitutional oath by calling

upon the members of his party in Congress to violate theirsJ This
is not a partisan issue. It is a moral issue."'*'
Roosevelt's letter was destined for frequent comparison with
President Taft's famous veto message on the Webb-Kenyon bill in
1913.2 Taft had admitted that "the exact point in question"^ had
not been decided by the Court; nor had he expressed certainty that
the Court would invalidate the bill if it were enacted. But in
the light of the Court's decisions and his own sworn duty and "in
spite of the popular approval of this bill," Taft had felt that
the bill was unconstitutional and for that reason, he had said,
he withheld his approval* That part of Taft's message which was
recalled after the issuance of Roosevelt's letter was Taft's for
mulation of the legislator's duty. He had written:
It is said that it should be left to the Supreme Court

to say whether this proposed act violates the Consti
tution. I dissent utterly from this proposition........
It is questionable whether the doubtful constitutionality
of a bill ought not to furnish a greater reason for
voting against the bill, or vetoing it, than for the
court to hold it invalid. The court will only declare
a law invalid where its unconstitutionality is clear,
while the lawmaker may very well hesitate to vote for
a bill if of doubtful constitutionality because of the
wisdom of keeping clearly within the fundamental law.4
CR 74:2; 9353, Snell (N.Y.) was the minority's leader in

the House.
g
For the text of the message, see CR 62:3: 4291-4292. See
also above p. fn.
3 ". . .to wit, the right of the Congress to delegate to States
the power to forbid the shipment of intoxicating liquors from an
other State into its jurisdiction."
4 CR 62:3: 4292.
3 of
The last sentence of R o o s e v e l t ’s letter -- expressing the
hope that constitutional doubts "however reasonable" would not
stand in the w a y — m a y have appeared flippant about constitutional
duty; but R o o s e v e l t ’s assumptions as to the power of the Court
were, like Taft's, conservative. That very cons erv ati sm produced
a certain confusion in the sentence. Was it being argued that
one should act regardless of his own doubts as to the limits of
the C onstitution? In the full context of the remarks, there
was no clear suggestion of a distinction between an in div i d u a l ’s

1
construction of the Constitution and construction by the C o u r t „
(Nor was such a distinction drawn by Taft.) The President did
state explicitly, however, that the Court would settle "the
ultimate question,," Indeed, he welcomed a decision as a "helpful"
guide and implied a promise to continue action w ith in its limits,,
Meanwhile -- since the Court had, unfortunately, not provided
sufficient "clarity" in indicating the "limits" there was a
constitutional doubt to be resolved. The President's formula for
resolving it -- "all doubts should be resolved in favor of the
bill" — had appeared frequently on the floors ofi Congress in the
past0 In his letter, Roosevelt did not cite legislative practice;
nor did he defend his resolution of the problem, by explaining that
doubts should be resolved in the direction in which one beli eved
the bias of the Constitution lay, toward negation or toward a c t i o n 0
An explanation appeared in R o o s e v e l t ’s notes to his published
papers. The last pa rag rap h of his letter, he said in retrospect,
wa s ’’really an und ers tatement" of "the traditional rule w hich the
^ Thu3, a critic m igh t argue that if Roosevelt w a s disregarding

doubts about wha t the Court w ou ld do, he was disregarding doubts
about what the Con stitution meant.
3/0
Courts are supposed to follow in determining whether or not a

statute is unconstitutional": the Courts would presume a statute
valid unless its invalidity was "'proved beyond all reasonable
doubt o' This proposition was generally accepted by the dis-
g
ciples of Judge Cooley and those who quoted Taft. The trouble
some question, however, was whether the same rule applied to legis
lators. Cooley had written that the reason why judges waived
their own doubts was that they presumed that legislators would
3
not act "if not folly assured of their authority to do so."
Roosevelt assumed — unless it may be said that he ignored the
question — that the role which guided judges was satisfactory
also for legislators.
The difference in emphasis in the formulation of a role for
legislative conduct did not account for the vehemence of the op
position's reaction to Roosevelt's attitude, however. The re
action is explained in part by the consequences which were expected
See Public Papers, Vol. IV, p. 298 and also pp. 3-4. Roosevelt
quoted from Justice Washington's opinion in Ogden v. Saunders, 12
Wheaton 213 (1827). The passage from which the quotation was
taken is as follows: " . . . the question . . . is involved in
difficulty and doubt. But if I could rest my opinion in favour
of the constitutionality of the law on which the question arises,
on no other ground than this doubt so felt and acknowledged, that
alone would, in my estimation, be a satisfactory vindication of
it. It is but a decent respect due to the wisdom, the integrity,
and the patriotism of the legislative body, by which any law is
passed, to presume in favour of its validity, until its violation
of the constitution is proved beyond all reasonable doubt." 12
Wheaton 213 at 270.
® The quotation from Ogden v. Saunders (see preceding footnote)
was quoted by opponents along with extracts from Cooley. See,
for example, CR 74:1: 14363.
3 Quoted in CR 74:1: 4363. See also above p. )SL9.
3 U
to result from the policy of passing doubtful questions on to the

Court. That policy, no matter how conservative the premise was
with regard to the Court's power, aroused old fears for the pre-
tige of the Court itself. Apprehension had been expressed by Taft
as follows;
The custom of legislators and executives having any

legislative function to remit to the courts entire
and ultimate responsibility as to the constitutionality
of the measures which they take part in passing is an
abuse which tends to put the court constantly in op
position to the legislature and executive, and, indeed,
to the popular supporters of unconstitutional laws.
If, however, the legislators and the executives had
attempted to do their duty this burden of popular dis
approval would have been lifted,from the courts, or
at least considerably lessened.
Roosevelt, in leaving to the Court "ultimate" if not "entire"

responsibility, fitted the description of those whom Taft criti
cized, In addition, there was some flippancy in Roosevelt's re
marks. So u n c le a r w ere "constitutional tests" that "a thousand
differing legal opinions" were possible. Even the phrase "in an
orderly fashion," if read literally, might indicate a relegation
of the Court to an indistinct role of influence in the future
rather than influence in the present with regard to the shaping
of legislation. If the Court had to wait its turn, emergency or
need might end and the Court's decision would be academic. Or if
there was still urgent need for the legislation, the onus for dis
allowing popular demand would be shifted, as Taft had said, to the
Court. Without setting forth these consequences, Representative
Snell at the 1936 convention said of Roosevelt: "He runs the true
1 CR 62:3: 4892.
J A*
course of a dictator . . . . he now casts a calculating eye upon

the judiciary, and by advice to Congress and sneer and jibe seeks
to usurp the last bulwark of the citizen against unbridled auto
cracy]"^
In passing, it may be noted that the appearance of the Presi
dent's letter — which the opposition claimed was a virtual admis
sion of the bill's unconstitutionality2 — rather than quieting
constitutional argument gave it a new impetus. The question of
the legislator's duty was once again thrashed out, and again as
in the past an indistinct common ground was evident — for example,
in the remarks of a future Chief Justice, Representative Fred M.
Vinson of Kentucky. Vinson, in response to "chiding" about the
letter to Hill, defended the President and referred to the fact
of uncertainty about future Court action although with more cir
cumspection than had Roosevelt: "May I say that nobody can have
the temerity to stand here and say that the Supreme Court would do
this or that as to constitutional questions."3 But after referring
with apparent sarcasm to "Judge Treadway and Judge Knutson, who
are not lawyers," he gave expression, later, to an assumption as
to individual responsibility which had not been quite clear in
the President's letter:
May I say that I have no quarrel with any man, whether

he be lawyer or layman, in respect to his views as to
constitutionality, because after all is said and done,
the only person who can answer his own convictions and
control his own conscience in this matter is each indi
vidual member.4
1 CR 74j2; 9355.
2 See House Report No. 1800, on H.R. 9100, 74th Cong., Views
of Minority, pp. 45, 58.
3 CR 74:1: 1344-9. 4 CR 74:1: 13450.
313
50 The Administration and the Court in 1956
A few days before the end of the 1935 session, Roosevelt

suggested to Senator Harrison and Representative Doughton that
their committees use the data that the NRA was collecting in
"a general survey” and prepare for the 1936 session "an industrial
statute of broad import." ^ The 1936 session was to be dominated
more by anticipation of the coming political campaign, however,
than by further legislative movement toward the labor standards
objective. The changing emphasis is illustrated by the President’s
attitude. In his annual message on January 3, 1936, Roosevelt
2
presented no agenda for legislative action. Instead, aside
from an enlarged emphasis on foreign affairs, he brought up to
date his charges of March 4, 1933 against "the unscrupulous
money changers." "We have earned the hatred of entrenched greed,"
he declared; and, in a catalogue of challenges to the opposition,
he asked, "Shall we say to the children who have worked all day
in the factory, ’Child labor is a local issue and so are your
starvation wages; something to be solved or left unsolved by the
jurisdictions of 48 States’?" No reference was made to the
problem of constitutionality although in his indictment the
President included the stealing of "the livery of great constitu
tional ideals to serve discredited special interests.”
Three days after Roosevelt appearedbeforeCongress, he
received from a minority on the Court thestrongest criticism
of the majority’s "tortured
1 Public Papers, Vol. IY, pp. 334-335.

2 See CR 74:2: 27-30.
-?/f
construction of the Constitution" which his political campaign

was to have. That phrase was supplied in a caustic dissent to
United States v, Butler, holding unconstitutional the Agricultural
Adjustment Act of 1933.^ With the concurrence of Brandeis and
Cardozo, Stone expressed in memorable terms the need for restraints
— that is, self-restraints — on the Supreme Court. But for the
time being, and with reference to the taxing-spending powers and
agricultural production, six members of the Court were prepared to
g
invoice the Tenth Amendment as a limitation on * national power.
Except for the passage of some legislation which was undoubt-
3
edly constitutional and covered limited classes of employees,
no labor standards legislation beyond that already described was
passed by the second New Deal Congress. In fact, the Walsh-Healey
bill, after having been passed by the Senate in August 1935, was
bottled up in the House Judiciary Committee until June 5, 1936.
Not until the last night of the session, three days before the
opening of the Democratic convention, was the bill finally amended
1 297 U.S. 1 at 87.

p
For Roosevelt’s comment on the decision, see below p.
“It is enough to say,” he added, that the welfare of agriculture
. . remains an immediate and constant objective of my adminis
tration." Address at the Jackson Day .Dinner, Jan. 8, 1936. CR
74:2: 196. Within eight weeks, the objective was approached in
directly through passage of a substitute act, the Soil Conservation
and Domestic Allotment Act, Feb. 29, 1936, 49 Stat. 1148.
3 Motor Carrier Act, Aug. 9, 1935, 49 Stat. 546; and act to ex
tend the Air Mail Service, Aug. 14, 1935, 49 Stat. 614 at 618; acts
to promote the welfare of American seamen in the merchant marine,
June 25 and 29, 1936, 49 Stat. 1930 and 1992.
■3IS
and passed by Congress,**- Meanwhile, "at the President's urging,"
Secretary Perkins had "canvassed the constitutional approach"

and had reported that there were "good lawyers" who felt that a
labor standards bill ought to be tried "with the formula of 'af-

g
fecting interstate commerce,'" "The President delayed in giving
the go-ahead signal," Perkins has written.
He was sensitive to the charge that he had no respect

for the Constitution, He was facing the 1936 campaign,
and he did not wish to be burdened with that charge.
Nor did he want to go into the campaign with labor people
badly disappointed. But his labor record was good, he
figured. He had done his best. It wasn't his fault but
the Supreme Court's, that the protection on hours and
wages was out. Moreover, the Walsh-Healey Act was an
earnest of good faith. The National Labor Relations Act
had been passed . . . . There was a growing disposition
among the more conservative element iruthe A. F. of L.
to think that that was perhaps enough.
On May 18, 1936, the Supreme Court declared unconstitutional
the Bituminous Coal Conservation Act and "revived beyond any doubt,"
said Perkins, "the doctrine of Hammer v. Dagenhart."4 That case,
which had not been cited in the Schechter opinion, was now cited
in the opinion of five members of the Court; and one of the well-
1 June 20, 1936. The bill was reported on the day after William
Green of the A. F. of L. had sent a telegram to each member of the
Judiciary Committee, saying, with regard to the next day's meeting,
"Your absence will be construed as opposition to the bill and as
being unfriendly to labor." CR 74:2: 10003.
g
See Perkins, op. cit., pp. 254-255.
3 Ibid.. p. 255.
4
Loc. cit. See Carter v. Carter Coal Co., 298 U.S. 238. Five
members of the Court held the entire act void. Cardozo, Brandeis ,
and Stone believed that the marketing provisions were separable
and valid, as did Hughes, and did not consider the labor provisions.
Hughes, however, in a separate opinion, agreed with the majority
that the labor provisions were void.
3/(>
publicized dicta of the Schechter opinion now appeared without
quotation marks: "the local character of mining, of manufacturing

1
and of crop growing is a fact e . . Two weeks later, the
Court reached "perhaps the climax of this line of decisions," in

the words of Roosevelt, when in the Tipaldo case it held uncon
stitutional the New York minimum-wage law for women and minors and
defined a "no-man's land" from which both state governments and
g
the national government were excluded. The due process barrier
of the Adkins case, which many thought had been surmounted by the
formulation of the New York law and by the Court's reasoning in
the Nebbia case of 1934, was now reconstructed and added to the
barrier represented by the majority's narrow view of the commerce
power in the Carter case.

On what avenue should Congress now move? The national party
conventions which were about to begin provided at least a rhetorical
reaction to the recent decisions and a clue to legislative action
in the 1937 Congress. Before the conventions and the campaign are
examined briefly, the picture of legislative movement in the months
following the Schechter case remains to be filled in. There were
many suggested and uncompleted attempts to reach the objective;
upon these, future policy might possibly be built.
**■ 298 U.S. 238 at 295, 304. For the Schechter dictum, see
above p.
2 Morehead v. New York ex rel Tipaldo, June 1, 1936, 298 U.S. 587.
Public Papers. Vol. IV, p. 12,
® Adkins v. Children's Hospital, 261 U.S. 525, 1923. The Nebbia

case is cited above p. J(>3 , fn. •?.
•317
4o Other strategies in Congress
a. Introduction
The Schechter case, no matter how high a barrier on the

avenue of the commerce power it may have seemed to be, did not
dam the energies which were moving toward national legislation,
nor did it serve to direct them forcefully against the Court
itself. Enough constitutional outlets were available — or at
least thought to be available — so that fiiends of labor
standards legislation could be temporarily satisfied either with
the interim legislation which has already been described or with
the hope that further Congressional legislation was still possible0
There were others who were uncertain or defeatist about the
possibility of such legislation. They, too, had constitutional
outlets. Some advocates of labor standards saw a new brightness
in the old avenue of interstate cooperation, and others found that
the time for a constitutional amendment of Congress’ power was
opportune. Thus, many strategies were available; but in the
absence of concentrated political demand or presidential leader
ship, unified attack to reach the objective was postponed. An
attack on the power of the Court was also averted. Even the
relatively few who proposed to reach the objective by stepping
on the Court or pushing it aside were disunited. For them, too,
a multiplicity of proposals was available, and the strength of
their hostility was dispersed.
J 19
Proposals for legislation

Indications of ingenuity
According to the chairman of the House Rules Committee,
John O'Connor of New York, "Mr. Republican" would campaign for
reelection as follows:
'I know, my friends, how deeply you feel about

the passing of the N.R.A. by reason of the decision
of our great Supreme Court. But that is the law of
the land, and we must obey it......... If you will
restore the Republicans to power, we will find a way
to accomplish the result you so enjoyed for 2 years,
but without destroying our very form of governmentJ*
Voice from the audience, a mill worker, now
getting $10 a week for 54 hours. 'Howy're goin1 to
do it? 1 Congressman Bluff (LaughtejfJ , 'My friend,
all I ask of you is to put your faith in the Grand ,
Old Party.' Same voice, '_________ ]' Laughter.
O'Connor himself, however, was not prepared to say how the

Democrats were going to do it. "A nonpartisan spirit" was neces
sary," he said. The American people had surmounted all crises,
and their "ingenuity" was "proportionately reflected in this
House of Representatives . . . . "
If the so-called 'brain trusters' steered us wrong,

there are still scores of the ablest lawyers in the
country right in this House of Representatives. Many
of them have presided over the highest courts in their
States. Many of them have been the leaders of the bar
in their communities. Many of them have as much fami
liarity with constitutional questions as any lawyer in
Washington or anywhere else. They are competent to, and
I trust will, guide us in this important situation.
O'Connor was speaking on June 7, 1935, during the debate

on the NRA resolution, when there was much confusion about the
1 For O'Connor's remarks, see CR 74:1: 8873.
31?
form that permanent policy would take. The President had joked
1
about "fifty different suggestions" for reaching the objective.
The New York Times, for example, had displayed a box with twelve
2
numbered possibilities. The Times also reported some talk in
favor of adoption by the International Labor Organization of
labor standards conventions that would be ratified by the United
States as treaties (assuming a two-thirds vote could be had in
the Senate) and afterwards implemented by the passage of legislation
considered to be constitutional since it would be in pursuance of
3
a treaty. Neither Congress nor the President encouraged this
strategy. In the House, O’Connor expressed the hope that a
proposal "conforming the operations within interstate commerce"
would soon be submitted and noted, also, that suggestions had
been made to prohibit interstate commerce "to the chiselers,"
4
to use the taxing power, or to denj'- the use of the mails.
A number of bills, noted below, included provisions based
upon the postal power, but no bill based soleljr upon that power
5
was introduced. Nor did any member introduce a labor standards
^ See above p. . S May 30, 1935, pi 130

The I.L.O. met in conference in Geneva a week after the
Schechter case. Circles in Geneva, the New York Times reported,
". 0 . welcomed the stimulus toward international action that the
Supreme Court seems to give." June 2, 1935, p. 26. A bilateral
treaty between the United States and Canada was also suggested as
a means of re-establishing parts of the NRA. Loc. cit0 The
suggestions were based upon Missouri v. Holland, 252 U.S. 4-16
(1920), upholding the Migratory Bird Treaty Act. See also New York
Times, June 4, 1935, pp. 8 and 40; June 23, 1935, Section IV, p, 9.
4 CR 74:1: 8873.
R
The Connery, Shanley, and Ellenbogen bills, described in the
pages which follow, included postal-power provisions.
"bill patterned after the Child Labor Tax Act.-1- Taxation had re-
g
cently been used for non-revenue and regulatory purposes but was
not discussed seriously in Congress as a means for compelling ad-
herence to labor standards. Through conditional exercise of the
The New York Times reported on June 4, 1935, p. 8, that per

sons close to the National Industrial Recovery Board were speaking
of the treaty-making power or "a graduated payroll tax, by which
those p a y in g low wages would be taxed more heavily than those pay
ing higher wages."
2 The Bankhead Cotton Control Act, 48 Stat. 598, April 21, 1934,
levied a destructive tax of 50 per cent of the market price of
cotton sold in excess of the statutory quota. Like the Guffey
Act, however, this Act was based upon the commerce power. The
National Firearms Act, 48 Stat. 1236, June 26, 1934, levied a tax
that was claimed to be destructive; but in Sonzinsky v. U. S.,
300 U.S. 506, March 29, 1937, the Court did not inquire into mo
tives and found that the tax was "productive of some revenue."
Here, as in U.S. v. Constantine, 296 U.S. 287, Dec. 9, 1935, the
Child Labor Tax Case was cited with approval. In the Constantine
case, holding void as a penalty a special tax on liquor dealers
acting in violation of State law, Cardozo (joined by Brandeis and
Stone) criticized the spread of "psychoanalysis . . . to unaccus
tomed fields" but did not refer to the Child* Labor Tax Case, 296
U.S. 287 at 299. The opinion for a unanimous court in the Sonzin
sky case was written by Stone.
® Representative David J. Lewis (D, Md.) had for some years been
conducting a one-man campaign for recognition of the general wel
fare clause as "a wider power than interstate commerce." See
Hearings before the Commi ttee on Labor . . . on H.R. 14105. 72nd
Cong., 2nd Sess., p. 203 and 198 ff. Before Roosevelts inaugura
tion, brief hearings had been held on his "Worker's Right to 'Work"
bill, which world have effected "equipartition of the available
employment" by taxing employers employing certain workers over a
monthly quota. Hearings before a Subcommittee of the Senate Com
mittee on the Judiciary on S. 5480 (introduced by requestj , Feb.
2-3, 1933.
The tax approach to labor standards received little attention
during the New Deal. One proposal which has been noted by the
writer, to tax excess hours of labor, was made in March 1933 not
by a politician but by a Nobel Prize chemist. New York Times.
March 30, 1933, p. 15.
A few days after the Schechter case, Representative Hoeppel
(D, Cal.) introduced extended remarks into the Record entitled
3A/ /
spending power, child-labor and minimum-wage standards had been
established in the sugar beet and sugarcane fields; no proposals
were made, however, to raise industrial standards through subsidy.^
"Why 'Chisel' the Constitution When the Constitution Will Positively

Save Our Country." Hoeppel, who stated he was not a lawyer or an
economist, proposed "the technotax" to "tax the machines accord
ing to the workers they displace." CR 74:1: 8473. On Jan. 3,
1935, he had introduced a joint resolution to authorize a survey,
CR 74:1: 57; but he introduced no bill.
•*- The Jones-Costigan Act, 48 Stat. 670, May 9, 1934, amend.ed

the Agricultural Adjustment Act, 48 Stat. 31, to include sugar
beets and sugarcane as basic agricultural commodities and pro
vided that agreements relating to these particular commodities
might contain provisions regulating child labor and fixing minimum
wages for workers. The Sugar Beet Production Adjustment Contracts
signed in November 1934 set up a wage scale and child-labor stand
ards. The American Child. Vol. 18, No. 1, p. 3 (Jan. 1936). The
Act became void in United States v. Butler, along with the A.A.A.
See above p. J / y . The Sugar Act of Sept. 1, 1937 ("an act to
regulate interstate commerce • . .; to raise revenue • . . ."),
50 Stat. 903 at 909-910, authorized the Secretary of Agriculture
to make payments upon conditions, including no child labor as
defined in the statute itself and "fair and reasonable" wage rates
to be determined by the Secretary.
The commerce power
The main independent efforts in Congress to reach the ob
jective continued to rest upon the commerce power. Before the
first session ended, following the Schechter case, an attempt
was made during the Senate debate on the Walsh government-contracts
1 ™
bill to substitute S. 87, the Black thirty-hour week bill. The
Administration’s leaders opposed the amendment not because fur
ther legislation was believed to be unconstitutional, as the
Walsh bill may have implied, but because the Black bill had ”no
p
chance" of success in the current session. On a roll-call vote,
3
the amendment was defeated 23 to 61; and for the remainder of
the Congress, the Black bill was moribund. In the House, a thirty-
hour bill was reported by Representative Connery's Committee on
4
Labor but was blocked by the Rules Committee. The bill, based
upon the prohibition-of-shipment formula, was the same bill (with
some minor changes and the omission of foreign-commerce and gov
ernment-contracts provisions) which had been introduced as a radic
ally new substitute shortly before the appearance of the recovery
R
bill in 1933. What was remarkable about the Labor Committee’s
1 See CR 74:1: 12795-12804, 12876-12880, 12883-12893.

2 Walsh, CR 74:1: 12796.
3 Aug. 12, 1935. CR 74:1: 12893. The amendment had been of
fered by Clark. Black remarked that the defeat on a record vote
of his motion to take up the bill four months earlier had dis
suaded him from making another move. CR 74:1: 12891-12892. See
above p. •?(>(>.
^ The bill was a substitute for H.R. 7198 (see above p. *?■$?,
fn. / ). House Report Ho. 1550. 74th Cong., 1st Sess., July 18,
1935 (pp. 1-5)". See CR 74:1: 11609 for a resolution by Connery,
5 The text of the bill is in H. Rept.1550. pp. 1-3. The text
of the earlier bill is in H. Rept. 124.73rd Cong., pp. 1-4, and
is described above pp.
with permission of the copyright owner. Further reproduction prohibited without permission
JA3
action was that the Committee also resubmitted (with some minor
changes in wording and a few necessary omissions) the bland and
1
cursory report of May 10, 1933, which has already been described.
A few other bills similar to Connery's were introduced and
p
buried in committee. But on one commerce-power bill which was
limited in application to the textile industry, some progress was
made. When the NBA had come to an end, there was tails; of enact
ing special and permanent legislation, like that which was pending
for bituminous-coal, for the oil, lumber, textile, and other in-
See above pp. Although the preamble of the earlier

bill recognizing the existence of an emergency was now omitted
and although one reference to "the present emergency" was omit
ted from the 1935 report, two other references to emergency were
retained.
2 On June 4, 1935, Representative Shanley (D, Conn.) introduced
H.R. 835£, which had, he said, "a background of months of study
in its preparation," to levy an excise tax of $1 on persons "whose
business directly affects commerce" and who were properly licensed.
A Federal Commerce Control Commission was to establish fair trade
practices, minimum wages, maximum hours, "and other conditions
of employment" pending submission to Congress of separate industry
and trade regulations. CR 74:1: 8646, 8662,
On August 5, 1935, Senator O'Mahoney (D, Wyo.) introduced
S. 3363 "to insure domestic tranquility and to promote the general
welfare by regulating and promoting commerce . . . ." CR 74:1:
12452. The bill provided for a general licensing system to be ad
ministered by the Federal Trade Commission. Three conditions
were set forth — relating to child labor, discrimination against
females, and collective bargaining; other conditions were to be
provided by Congress itself after study by the F.T.C. The ances
try of his licensing proposal, said O'Mahoney, was to be found in
the Garfield Report, transmitted to Congress in 1904, and in the
presidential message of January 7, 1910 in which Taft recommended
passage of a federal incorporation law. CR 74:1: 12551-12557.
Cf. House Document No. 165. "Report of the Commissioner of Corpor
ations,*1 Dec. 21, 1904, 58th Cong., 3rd Sess., at pp. 44-46; CR
61:2: 381-383.
See also H.R. 9043, by Elleribogen (D, Penn.), Aug. 3, 1935,
CR 74:1: 12451.
3**f
dustries.^ The Ellenbogen bill introduced on August 8, 1935

proposed to license persons engaged in the production and dis-
g
tribution of textile products. Hearings were held on nine
days early in 1936. Speaking on January 27, the first day of
the hearings, Representative Ellenbogen expressed the attitude
of the bill’s sponsors when he said that certain sections of the
Mil — those designed "to deny the use of the malls, the benefit
of Government purchases . . . , and the privilege of registra
tion of securities" — were "absolutely constitutional" and that
the coimnerce-power sections were "constitutional by the fair pre-
ponderanee of the weight of the evidence," That the latter con
clusion was tentative, Ellenbogen went on to admit:
I think that is all that can be said to you in favor

of any bill that attempts to do anything at the present
time. Until we have the decision of the Supreme Court
in cases like the coal bill . . . nobody can say to
you that those provisions of this bill which depend
upon the interstate commerce clause are unconstitutional
or constitutional. Nobody can say that until the deci
sion of the Supreme Court on the coal act and the Wagner
Act is handed down.^
During the weeks which followed, the bill underwent extensive

revision to satisfy both labor and employers and also, said the
^ New York Times. May 31, 1935, p. 8; June 2, 1955, p. 26;

June 6, 1935, p. 12.
8 H.R. 9072, by Ellenbogen, CR 74:1: 12766. The bill con
tained provisions for fair practices and wage-hour and child-
labor standards but no price-fixing provisions. See also CR 74:
1: 14024-14025.
Hearings before a Subcommittee of the Committee on Labor.
House Representatives. on H.R. 9072. 74th Cong., 2nd Sess.,
Jan. 27-Feb. 6, 1956, iv-794 pp., p. 19.
4 Loc. cit.
3 &S
chairman of the subeommittee-in-charge, to secure a bill that

would have "a fair chance" before the Supreme Court The op
position argued that the Guffey Act had resulted in "a flood of
litigation, general confusion" and that it was "idle and futile"
to attempt to legislate before decisions were had on the Guffey
g
Act and on the Wagner Act. On the second day of arguments be
fore the Supreme Court in the Carter case, a revised bill was
3
introduced in the House. Over two months went by while the
Court delayed its final decision. Meanwhile, after about five
4
weeks had elapsed, Ellenbogen introduced a second revised bill.
The full committee reported it to the House, and Connery attempted
to secure consideration. But no more action was to be taken.
A week later, on May 18, the Guffey Act was, at last, declared
unconstitutional •
See the letter from Rep. Keller (D, 111.), chairman of the
subcommittee, to Connery in House Report No. £590, 74th Cong.,
May 6, 1936 (pp. 1-18), pp. 2-9.
2 Rep. Hartley, Jr. (R, N.J.), ibid., pp. 12, 17-18.
3 H.R. 11770, by Ellenbogen, March 12, 1936, CR 74:2: 3705.
This bill eliminated references to child labor. Keller in his
letter to Connery stated: ". . . a provision in this bill for
equal pay for equal work makes the use of child labor economic
ally and, therefore, practically unsound and ends it permanently."
H. Rept. 2590. 74th Cong., p. 4.
4 H.R. 12285, by Ellenbogen, April 14, 1936, CR 74:2: 5504.
5 See fn. / above and H. Res. 505, May 8, 1935, CR 74:2: 7015.
sj*A f
a
Divesting of interstate character
Until this time, during the months following the Schechter

case, no labor-standards bill had been introduced patterned after
the liquor acts — the Wilson Act of 1890 or the Webb-Kenyon Act
of 1917,1 The Wilson formula had been followed with regard to con
vict-made goods in 1929 — those goods were made subject to State
laws "upon arrival and delivery"; and in July 1935, two months
after the Schechter decision, a second statute was enacted using
the Webb-Kenyon formula — prohibiting the transportation of con-
g
vict-made goods into a State in violation of State laws* On
March 2, 1936, the constitutionality of the 1929 act was upheld
by the Court; and the Dagenhart precedent seemed to be weakened
rt.
since harmless goods were being banned from interstate commerce.
But no new bill challenging that precedent was introduced. How
ever, in the final month of Congress, Senator Schwellenbach intro
duced a child-labor bill which " . . . does not come within the pur
view of the Dagenhart decision."4 His bill, which was offered
frankly for the purpose of discussion, followed the pattern of the
first convice-inade goods act, which had recently been upheld,
rather than the second act, which was yet to be passed upon by
the Court.
■*" For the acts, see above pp. /7/,

^ Hawes-Cooper Act, 45 Stat. 1084, Jan. 19, 1929. (The act did
not become effective until 1934). Ashurst-Sumners Act, 49 Stat.
494, July 24, 1935.
The New York cotton garment market was reported as seeing in
the Ashurst-Sumners Act a workable basis for a new NRA. New York
Times. July 28, 1935, Sec. Ill, P. 9.
3 Whitfield v. Ohio, 297 U.S. 431. No reference was made to the
Dagenhart case.
4 S. 4736, June 2, 1936. CR 74:2; 8626-8630.
3Ay
Proposals affecting the Constitution and the Court

Introduction
"The public welfare is first,” said Senator Pope of Idaho,
shortly after the Schechter decision. "If the Constitution gets
in the way, it must yield. If the Supreme Court gets in the way,
it must yield. Pope's formula seemed simple on its surface;
but hidden beneath it were complex problems of diagnosis and exact
prescription.2 Was there really a barrier? If so, what kind of
barrier? This latter question was difficult to answer since it
was not easy to separate what the Constitution meant from what the
judges would in the future say it meant. Nor was it a simple mat
ter, if the barrier was thought to be the Court, to prescribe a
cure both effective and politically popular. The strength of the
Constitution as a symbol was largely shared by the Court. To that
strength was due, in part, the lack of any concentrated opposition
to the power of the Court or, for that matter, of any concentrated
support for a constitutional amendment to enlarge the power of
Congress.
There was, however, during the 1935 and 1936 sessions, a
rising interest in discussion about the fundamentals of the consti
^ New York Times. June 1, 1935, p. 7.

^ For example, could one draw a sharp inference as to whether
Pope was moving against the Constitution or against the Court
from the following two proposals which he made during the 74th
Congress: to allow for popular ratification of proposed amend
ments and to require an extraordinary concurrence in the Court
before an act could be held void? For citations, see below -p .3 3 S'
fn.*( and p. j j j fn. <*.
tutional system'1' and "a flood of suggestions” as to how the way
could be cleared for labor-standards legislation and the New Deal
program in general.2 Neither that discussion nor all the sug
gestions are examined in these pages, but the present inquiry re
quires at least a brief survey of the suggestions which took tan
gible shape in Congress. Out of the debate and discontent there
materialized some fifty bills and joint resolutions designed to
broaden the avenue of constitutional power or to reduce the judi
cial barrier. Their number was an index to the rising interest
in constitutional problems; and their variety of substance and
form, an indication of Congressional uncertainty. The proposals
themselves suggested a dearth of radical or doctrinaire convic
tions about judicial power or, at least, the tempering of logic
by political strategy.'5 To a large extent, the bills and resolu
tions were practical expedients appearing in the wake of particular
decisions. But none was so practical that it could manage to move
beyond committee.
"I suppose issues have always been beclouded, evaded, and

twisted,” said Representative Maverick (D, Tex.) on June 14, 1935,
"but more issues are being clouded, evaded, and twisted now than
ever before." CR 74:1: 9315.
^ The quotation, from remarks by Rep. Martin (D, Col.), was
made with reference to judicial power over Congressional legisla
tion. CR 74:1: 8894.
3 Thus, Representative Martin favored a constitutional enlarge
ment of Congress' power since "talk of curbing judicial power
soon subsides." CR 74:1: 8894-8896. On the other hand, Repre
sentative Hildebrandt (D, S.D.) believed that both courses of ac
tion were necessary. CR 74:1: 8470, 10505. See also above p. 3 .p &
fn. , for the strategy of the A. F. of L.
JJf
Following the Schechter Case
In the Congressional reaction to the Schechter case, no pro

posal was made to withdraw from the Court its power of passing
upon the constitutionality of legislation. A constitutional amend
ment to do just that had "been proposed following the Alton case in
which the Court held void the Railroad Retirement Act by a 5-to-4
vote.'*' The main reaction to the Alton case, however, during the
three weeks which elapsed before the Schechter decision, was the
introduction of five bills and three constitutional amendments to
require the concurrence of two-thirds or three-fourths of the Court
g
or seven judges before an act could be held void. The motivation
for these requirements was partly conservative: not only to bridle
the Court but to abolish what sounded like "the betting odds at a
horse race" and thereby to restore "confidence and respect." Two
constitutional amendments similar to those just noted were proposed
after the Schechter decision, one introduced by Senator Norris re
ceiving wide publicity;4 but the proposals for basic change were
now directed mainly at the Constitution rather than the Court. The
Court had, after all, acted unanimously and had received widespread
thanks for the immediate consequences of its decision (including
1 H. J. Res. 296, by Hill (D, Wash.), May 20, 1935, CR 74:1:

7855, 7890. The Alton case is cited above, p. £ 8 p fn. A .
2 Ramsay (D, W. Va.): H.J. Res. 277, H.R. 7997, H.R, 8054;
May 7, 10, 14, 1935; CR 74:1: 7106, 7343 and 7729-7730, 7545 and
CR 74:2: 850-859. H.J. Res. 287, H.R. 8100, H.R. 8123, by Dobbins
TD, 111.), Crosser (D, Ohio), Young (D, Ohio); May 14, 16, 17,
1935; CR 74:1: 7546, 7740, 7781 and 8862-8864. Monaghan (D, Mont.):
H.R. 8168 and H.J. Res. 301, May 22 and 24, 1935, CR 74:1: 8032,
8213. For the content of some of these proposals and others re
ferred to elsewhere in this section, see New York Times, Feb. 14,
1936, p. 5.
3 Ramsay, CR 74:1: 7730.
31 o
perhaps, the tacit thanks of the President).1 Possibly the most
serious threat to the Court’s power was to be found in a bill
authorizing requests for advisory opinions and in three constitu-

g
tional amendments requiring these opinions. Such a requirement
would strip away the panoply of a case or controversy and, as

James M. Beck said, in speaking of the Court, would be "destruc
tive of its prestige."^

Following the Schechter case and in rapid succession, four
constitutional amendments to grant Congress wide national powers
were proposed in the House;4 and newspaper headlines reported

plans within the Administration for a "Quick Amendment," perhaps
5
within sixty days. Some members of Congress advocated the calling
4 S.J. Res. 149, June 17, 1955, CR 74:1: 9415, 9898, 10505;
H.J. Res. 329, by Quinn (D, Penn.), June 17, 1935, CR 74:1: 9506.
For examples of advocates of constitutional enlargement of

Congress' power who criticized the Court for its decision in the
Schechter case, see CR 74:1: 8800-8802, 8897, 8815-8817.
2 H.R. 8309, by Cross (D, Tex.), June 3, 1935, CR 74:1: 8603;

H.J. Res. 317, H.J. Res. 344, H. J. Res. 374, by Tolan (D, Cal.),
Maas (R, Minn.), Hobbs (D, Ala.), June 7, July 9, Aug. 6, 1935;
CR 74:1: 8920 and 10759-10760, 10907, 12605.
3 New York Times. June 23, 1935, p. 27.

4 H.J. Res. 304 (the Costigan amendment — see above p.«?67fn. / ) ,
H.J. Res. 316, H.J. Res. 323, H.J. Res. 527; by Ford (D, Cal.),
Keller (D, 111.), Wood (D, Mo.), Marcantonio (R, N.Y.); May 31,
June 7, 12, 17, 1935; CR 74:1: 8482 and 8468-8469, 8903-8904 and
8920, 9220, 9506.
3 New York Times, June 2, 1935, p. 1. Arthur Krock wroê that

although everyone either thanked God or mourned the loss of the
codes on the day of the Schechter decision, "the throwback force
of the interstate commerce passage of the opinionbegan to be real
ized, and today talk is everywhere of a constitutionalamendment. •
. . ." Ibid., May 30, 1935, p. 16.
331
of a national constitutional convention,1 but the only proposal
which suggested that course of action was a resolution calling
on the House Judiciary Committee to investigate the powers of
Congress and the Court and to recommend measures "to restore Con
gress as the supreme legislative authority of the people of the

g
United States." Except for the special case of the Child-Labor
Amendment, no encouragement for the advocates of constitutional
amendment came from the Administration. Roosevelt had hailed the
light which the Schechter opinion shed on the question of con
stitutional power; and some of his supporters, for whom the issue
was equally "clear," found the "course of action unmistakable.
We must so change our Constitution as to permit this national
control."^ The opposition - which was stirring itself with slo
gans of "Save the Constitutioni" — welcomed the stage of battle

4
that a frank and bold constitutional amendment might set; but
the Administration did not offer to battle on that level. On

January 8, 1936, Roosevelt gave a sufficient clue to the arena
within which he would fight when he said of the A.A.A. decision
that it was accompanied by "two of the most momentous opinions —
Representative Marcantonio, Schneider (Prog., Wis.), Amlie

(Frog/, Wis.), Lundeen (F-L, Minn.), Maverick. New York Times.
May 30, 1935, p. 11; June 2, 1935, p. 29.
^ H.Res. 234, by Sisson (D, N.Y.), May 31, 1935, CR 74:1: 8482;
New York Times. June 29, 1935, p. 5. See also CR 74:1: 10399-10411.
3 Hook (D, Mich.), CR 74:1: 8801.

4 See New York Times. June 8, 1935, p. 1; the text of a radio
address by Senator Borah, ibid.. June 3, 1935, p. 2; and the
text of a statement by Herbert Hoover, ibid.. Aug. 12, 1935, pp.
1-2 ("The nation has a right to know before this session of Con
gress ends what changes this administration proposes in the Con
stitution. ").
the majority opinion ana the minority opinion — ever rendered."-'-
The Child-Labor Amendment

The constitutional-amendment approach was considered by the
Administration to be necessary, however, to reach the child-labor
objective. This was still "the obvious way," President Roosevelt

P
was to say on January 8, 1957. The Child-Labor Amendment had
moved two-thirds of the way toward final ratification by the time
of the Schechter decision and had twelve States to go. The year
1936 was an off-year for State legislatures, and. no more States

were added to the total wiiich had ratified. Meanwhile, the ad
vocates of the Amendment marked time. As early as May 1955, the
National Child Labor Committee had postponed the crucial time for
the Amendment to 1937.^
The 1956 session

Three more national-power amendments were proposed after the
A.A.A. decision;4 and on June 2, 1936, after the Carter and
1 See above p. J/1/ , fn. «2.

2 -
Letter to the governors of nineteen States wiiich had. not
ratified the Amendment. The American Child, Vol. 19, No. 2, p. 1
(February 1937).
® The American Child, Vol. 17, No. 5, p. 2 (May 1955).
4 H.J. Res. 440 and H.J. Res. 471, by Marcantonio and Pierce
(D, Ore.), Jan. 8 and 28, 1956, CR 74:2: 185, 1143. Representative
Ferguson (D, Okla.) said on Jan. 10, 1936 that Congress' general -
welfare power would be clear if Article I, section 6, paragraph 1
of the Constitution was amended "by the mere changing of a comma
to a semicolon and the insertion of the conjunction 'and.'" Ac
cordingly, he introduced H.J. Res. 446. CR 74:2: 298, 396-398.
Five amendments were proposed to increase national power over

agriculture, including one amendment authorizing Congress to
legislate -with regard to industrial disputes and to regulate and
control the production of any agricultural, mineral, or manufac
tured product "y/hich may move in or affect interstate or foreign
commerce." S.J. Res. 185, by Logan (D, Ky.), Jan. 9, 1956, CR 74:
2: 190.
JJJ
Tipaldo decisions and a few weeks before the Democrats met in
national convention, the chairman of the Senate's Judiciary
Committee, Henry Ashurst (and later, Representative Celler of
the House Judiciary Committee), proposed a constitutional amend
ment empowering Congress "to regulate agriculture, commerce, in-
dustry, and labor." But although this sponsorship seems sig
nificant, there was no evidence that the President had adopted
the general-amendment approach.

The split decisions in the Carter and Tipaldo cases, coming
late in the 1936 session, were followed by no proposals to curb
the Court; but such proposals had appeared early in 1936, after
the split decision in the A.A.A. case. Three new bills (rather
than constitutional amendments) were introduced to require extra-

P
ordinary concurrence in the Court p two hills to increase the
size of the Court to eleven or fifteen members; and two consti

tutional amendments to allow the recall of judicial decisions by
Congress or the people.^ One representative who had sponsored in
1935 a bill authorizing requests for advisory opinions and another
1 S.J. Res. 285 and H.J. Res. 629 (June 17, 1936), CR 74:2: 9191
and 9222-9224. A similar amendment was proposed on June 2, 1936
by Martin. H.J. Res. 617, CR 74:2: 8763.
2 H.R. 10196, S. 3739, S. 3912; by Gillette (D, la.), Norbeck

(R, S.D.), Pope; Jan. 14, 17, Feb. 3, 1936; CR 74:2: 411, 553,
1360-1361.
3 H.R. 10362 and H.R. 10102, by Lundeen and Quinn, Jan. 17 and
10, 1936, CR 74:2: 632, 298.
4 H.J. Res. 509 and H.J. Res. 565, by Buckler (F-L, Minn.) and
Zioncheck (D, Wash.), March 3 and April 9, 1936, CR 74:2; 3202,
5321.
33 Y
representative who had sponsored a resolution for investigation
now introduced hills to withdraw constitutional questions from
the jurisdiction of lower courts and from the Supreme Court's ap
pellate jurisdiction.-1- A third member of the House proposed to
achieve this end by constitutional amendment, In addition, Repre
sentative Monaghan, who had introduced both a bill and a consti

tutional amendment in 1955 providing for extraordinary concurrence,
followed the course of action which Senator Owen had taken after
7
the Dagenhart decision. Shortly after the A.A.A. decision, Mona
ghan introduced bills to amend the new Railroad Retirement Act,

the Guffey Act, and the T.V.A. Act to provide that passage by
Congress was "conclusive presumption of . . . constitutionality"

and that any federal judge who held the act void
. . . . is hereby declared to be guilty of violating

the constitutional requirement of 'good behavior' . . .
and shall be held by such decision ipso facto to have
vacated his office . . . .4
Although Monaghan was calling for statutory action, he was
making a gesture which had no more prospect of success than did
random proposals to amend the Constitution. Yet even ineffectual
-1- H.R. 9478 and H 0R. 10315, by Cross and Sisson, Jan. 3 and 16,
1936, CR 74:2: 32 (debated on Jan. 28, 1936, CR 74:2: 1095-1100),
549. H.R. 10839, by Ramsay prohibited only inferior federal courts
from ruling on constitutionality. Feb, 3, 1936, CR 74:2: 1426.
2 H.J. Res. 462, by Scott (D, Cal.), Jan. 20, 1936, CR 74:2: 770.
3 See above p. f** ' < dnd
4 H.R. 10663, H.R. 10664, H.R. 10764, H.R. 10765, Jan. 28 and 30,
CR 74:2: 1129-1130, 1143, 1290. The bill to amend the T.V.A. Act
was withdrawn on the same day (Feb. 17, 1936) that the Court ruled
favorably in the T.V.A. case. CR 74:2; 2223.
3 3S*
proposals appeared to command some enthusiasm. "I have been
hearing about these 5-to-4 decisions ever since I was a kid,"
said a recently-elected member of the House, Dobbins of Illinois.

"I intend to push for action . . . . This is like the weather —
everybody talks about it but nobody does anything about it."1
Dobbins* action, which has been noted earlier, was to require
two-thirds concurrence by means of a constitutional amendment.
Even more circuitous detours (which might be used to reach the
labor-standards objective) were indicated in proposals to amend
the amending clause of the Constitution — six early in 1935 and

2
one in January 1936. Perhaps the action which was the least bold
was that proposed by Representatives Hamilton Fish, Jr. and Samuel
B. Pettengill after the New York State minimum-wage law was de
clared unconstitutional by a five-to-four vote in the Tipaldo
case. They proposed amending the Constitution to empower "each

State" to fix minimum wages.
2 H.J. Res. 34, S. 198 fslcj , S.J. Res. 15, H.J. Res. 196; by
Griffin (D, N.Y.), Lonergan (D, Conn.), Pope (D, Idaho), Dunn
(D, Penn.); Jan. 3, 4, 7, March 6 , 1935; CR 74:1: 57, 103, 139,
3066. Wadsworth (R, N.Y.) introduced H.R. 8900 and H.R, 6463,
Jan. 4 and March 6, 1935, CR 74:1: 185, 3066. S.J. Res. 186 by
Schwellenbach (D, Wash.), Jan. 9, 1936, CR 74:8: 190-191.
3 H.J. Res. 618 and H.R. Res. 620 by Fish (R, N.Y.), June 2 and
3, 1936; H.J. Res. 621, by Pettengill (D, Ind.), June 6, 1936. CR
74:2: 8763, 9015, 9128.
.J3t>/
Stimulating •uniform State action

The Tipaldo decision, by impeding action in each State,
was also a barrier to uniform State action. For some enthusi
asts, this avenue had been a possible alternative to national
action. Others had favored it as a supplementary program; the

Secretary of Labor, as a temporary expedient,1 On the day after
the Schechter decision, a resolution was filed in the Massachu
setts legislature petitioning the President to endorse "this last
remaining hope of uniformity and national progress in working

P
conditions"; and on the following day, New Hampshire became the
second State to ratify the minimum-wage compact (for women and
children) which had been signed by representatives of seven

3
northeastern States in May 1934. The signing of that compact
had been preceded by five major interstate conferences on labor

problems, the first having met in January 1931 at Albany, upon
the call of Roosevelt.^ In January 1935, Secretary Perkins spon

sored a southern regional conference on labor legislation and,
a few days after the Schechter decision, issued a call for an

Interstate Conference on Labor Compacts to be held in Washington
5
early in June, Another conference met in October in North Carolina
1 See the remarks of Sen, Logan (D, Ky.), Rep. O'Connor (D, N.
Y.), and Miss Perkins, New York Times. June 1 and 6, 1935, pp. 7,
11 .
2 For text, see ibid.. May 29, 1935, p. 15,
® 39 Monthly Labor Review 61ff. (July 1934), CR 74sis 9083,
4 For Senator Walsh's recounting of the history of the minimum-

wage compact, see CR 75:1: 3847.
'5 40 Monthly Labor Review 670-672, New York Times. June 2, 1935,
p. 29.
3*7
the second National Conference on Labor Legislation,-1- Resolu
tions were adopted; but no new compact was signed, and not until
May 1936 did a third State, Rhode Island, ratify the 1934 com
pact,2 The hope of Massachusetts, in particular, for cooperation
with the textile States of the southeast did not materialize.
The movement received only half-hearted encouragement from
Congress. A resolution authorizing — and intended, thereby, to

stimulate — the negotiation of labor compacts passed the House in
June 1934.^ In the next Congress, in April 1935, the resolution

was passed again but was not considered by the Senate,^ Another
resolution, which granted Congressional consent to the compact
ratified by Massachusetts and New Hampshire, passed only the House;6

and a bill "granting the consent of Congress to any two or more
States" to enter into labor compacts, which was introduced by

7
Senator Wagner on August 1, 1935, never left the committee.
41 Monthly Labor Review 1247ff. (November 1935).
2 CR 75:1: 3847.
® See letter to Senator Walsh (D, Mass.) from the chairman of

the Massachusetts Commission on Inter-State Compacts Affecting
Labor and Industries, CR 73:2: 2337.
4 H.J, Res. 267, by McCormack (D, Mass.), Feb. 8 , 1934, CR 73:

2: 2230; passed the House on June 16, 1934, CR 73:2: 12139,
Walsh introduced a companion resolution on Feb. 10, 1934; S.J.
Res. 84, CR 73:2: 2336,
5
H.J. Res. 43, H.J. Res. 146, by McCormack, Jan. 3, 30, 1935,
CR 74:1: 57, 1292; the latter passed the House on April 1, 1935
CR 74:1: 4791-4793, Walsh introduced S.J. Res. 28 on Jan. 14,
1935, CR 74:1: 409.
6 H.J. Res. 321, by Tobey (R, N.H.), June 12, 1935, CR 74:1: 9220;
passed the House on Jan. 20, 1936, CR 74:2: 725-727, S.J. Res.
148, by Walsh, June 12, 1935, CR 74TT: 9083; reported on June 21,
1935, CR 74:1: 9817.
7 S. 3351, CR 74;1: 12244.
D* The party conventions and the campaign
The 1936 Republican national convention met in June, in
the shadow of the Tipaldo decision. Neither of the major speak
ers, Senator Steiwer or Representative Snell, both of whom de
fined the issue in the terms of "political morality," referred
to the problem of State minimum-wage laws for women.'1' On June
11, the party platform appeared, a document exceptionally per

meated with references to constitutional dangers and obliga-
g
tions. America was "in peril"; the Supreme Court had. been
"flaunted"; the New Deal had insisted on the passage of uncon
stitutional laws* The party pledged itself "to resist all at
tempts to impair the authority of the Supreme Court of the United
States" and invited "all Americans . . . to join us in defense
of American institutions." On the question of State minimum-
wage laws for women, the platform didtake a position. Those
laws (as well as child-labor laws andmaximum-hour laws for "women
and children") were endorsed; the Tipaldo case was ignored; and
the following statement was made: "Webelieve that this can be
done within the Constitution as it now stands*" It was to be
done by "State laws and interstate compacts." Thus, the 1936
platform went beyond that of 1932, which endorsed only the "prin
ciple" of high wages and shorter hours in private industry.3 In
The words quoted are Steiwer1s. CR 74:2; 10384* For remarks

by Snell, see above p* 3<?7- 3 0
2 CR 74:2: 10381-10383. 3 CR 72:1: 14118.
33?
1936, however, national action to reach these objectives was
apparently forbidden.
The platform of the New Dealers of 1936, Charles Beard has
observed, was unlike that of the Republicans in 1860 and the
Democrats in 1896: nothing was said about a possible reconstruc
tion of the Supreme Court,1 There was, in fact, no mention at

£
all of the Court and no direct reference to judicial setbacks.
The Court's presence, however, could be felt in every line of a
section entitled "The Constitution," in which the Republican plat
form was criticized by name for proposing "to meet many pressing
national problems solely by action of the separate States," We
know, said the Democrats, that minimum wages, maximum hours, and
child labor, among other problems, cannot be handled exclusively

by forty-eight States, "We have sought and will continue to seek
to meet these problems through legislation within the Constitution."
What legislative strategy would be used to go beyond the Walsh-

Healey bill, for example, which was at that moment awaiting the
President's signature, was not disclosed.
If those problems cannot be effectively solved by

legislation within the Constitution, we shall seek
such clarifying amendment as will assure to the legis
latures of the several States and to the Congress of
the United States, each within its proper jurisdiction,
the power to enact those laws which the State and
Federal Legislatures, within their respective spheres,
shall find necessary In order adequately to regulate
commerce, protect public health and safety, and safe
guard economic security. Thus we propose to maintain
the letter and spirit of the Constitution,^
1 Oil* cit,« p, 317, 2 For the platform, see CR 74:2: 10409.

3
CR 74:2: 10410.
3*0
Whoever suggested the word "clarifying1' was "a lawyer of
singular distinction, a connoisseur of language," Beard has re
marked; for thereby it was insinuated that Congress had ample
powers but that the Court had muddied the Constitution. At any
rate, the New Dealers hac spoken conservatively. They had re
affirmed their support not only of constitutional government but
also, in the closing words of the platform, of "democratic gov
ernment as conceived by the founders of our Nation."
"The faith of our fathers" was again re-affirmed when Presi
dent Roosevelt addressed the convention and subscribed heartily
to the "brave and clear" platform.^ In keeping with the spir.it
of Philadelphia, in which the convention was being held, the
President compared 1776 and the present. Political autocrats
had been succeeded by economic royalists who had created "a new
despotism and wrapped it in the robes of legal sanction." Hours,
wages, and conditions of work were imposed by economic tyranny
against which only the organized power of Government could stand.
That power was necessary if freedom was to be restored. To the
listener, there could be no doubt that the New Deal was to con
tinue moving forward and. that the objective was to be wrapped, in
conservative robes -- "to give to 1936 as the founders gave to
1776 . . . an American way of life." In the circumstances of the
hour, it was perhaps to be expected that the exact course of the
march should not be stated, especially since it did not appear
from the President's speech that any constitutional or judicial
barriers stood in the way. The economic royalists were seek-
1 See CR 74:2: 10411-10412.
ing "to hide behind the flag and the Constitution" but "invain."
If in the light of past and impending controversy over the
Court there was a strange unreality about the Presidents ad

dress, that was not true of the rousing speeches of Senators
Barkley and Robinson, who quite literally got down to cases.'1'
Robinson called the roll of decisions which had been "slowing
up national recovery." The Tipaldo case enabled him to reach a
climax:
0 blind and impartial justice, what blunders

are committed in thy namei Liberty, art thou both
deaf and dumbi Canst thou not behold the pallid
faces, the emaciated forms, the sweating brows, the
trembling hands of millions of women and children
workers who by the decision are left at the mercy
of those who have neither pity nor charity for the
oppressed and the poor?
Barkley, too, called a roll, a roll of critics of the judges —

Jefferson, Jackson, Lincoln, and Theodore Roosevelt -- in answer
ing the question: "Is the Court . . . too sacred to be disagreed

with?” In addition, Barkley quoted the well-worn observation
of Hughes — that the Constitution was what the judges said it
was — and presented as his most recent witness, Justice Stone,

"this great lawyer and great American," who in his dissent in the
Tipaldo case had spoken of "our own personal economic predilec

tions" and had restated the need for judicial self-restraint.
The two orations were indeed remarkable for the amount of
attention they paid to the Court and the vigor with which they
For Barkley’s speech, see CR 74:2: 10397-10404; for Robin

son’s, CR 74:2: 10405-10408.
J *4
denied that the Court was sacred. Barkley, in particular, de
rided the myth of Judicial objectivity and infallibility. He was
willing, he said, to accord to Judges "the right to their views
of law and constitutions which I claim for myself." Nor was he
indirect in identifying the partisan allies of the Judicial bias;
alongside "tortured souls and bodies" of men, women, and children„
he said, could be placed "a voice from the grave at Palo Alto • • .
the hosannas of Hoover for the tortured interpretation of the
Constitution." The orations were equally remarkable, however, for
their restraint and for what was left unsaid. In substance, both
speakers said little more than Robinson did in the following three
sentences:
In spite of these decisions the American people are

going forward. We recognize that the decisions of
the Supreme Court, until reversed, are final, and
we abide by them. Nevertheless, we do not regard
the Court above and beyond those factors and causes
which naturally influence the minds of human beings.
There was no criticism of the Constitution as it stood, no
disrespect for the Court "as an institution," no attack on the
power of Judicial review, and not even opposition to decision
making by a vote of 5 to 4.^ The speeches did little more than
diagnose the problem; but the cure was obvious: the minority
of the Court — which had itself supplied the strongest word in
^ "I make no attack on the Supreme Court," saidBarkley. "As

an institution, I respect it." At another point,Barkley spoke
of recall of Judicial decisions but only to illustrate the criti
cal spirit of Theodore Roosevelt, whom the Republican nominees
boasted of having supported. CR 74:2: 10402-3.
r
jvj*
the diagnosis, "tortured", to describe the prevailing construction

of the Constitution — sho\ild replace the majority*1
An examination of the speeches and literature of the polit
ical campaign which followed is beyond the scope of these pages.
The campaign, like the battle in 1937 over the President's Court
plan, provides a mine of raw material for the student of the
popular mythology which has surrounded the Constitution and the
Court. The Republicans used "terse, even violent, terms," writes
Beard, and "informed the country, with shrewd insinuation, that
the Democrats . . . would in some way curb the Supreme Court,”
while the Democrats "carefully avoided exhibiting an official
g
bill of specifications respecting their concrete intentions."
1 Robinson did imply that a constitutional amendment might

prove necessary when he spoke of the Republican convention's
rebuffing its nominee, Landon, who had advocated an amendment
empowering the States to set labor standards* Instead, "the
Republicans . . . half-heartedly advocate the passage of State
laws which by the precedent of Morehead against Tipaldo would
be of doubtful constitutionality." Robinson himself urged no
solutionjbolder than Landon's. "Everyone," he said, " . . . now
seeks concurrence in a plan to overcome" the Tipaldo decision.
But no plans were specified, nor did any appear necessary if the
Court reversed the Tipaldo case. Earlier, Robinson had said
that exactly that should be done. "Whatever may be the just basis
for differences of opinion respecting other decisions, the bar
of the United States overwhelmingly repudiates" the Tipaldo deci
sion. CR 74:2s 10408.
Barkley, also, spoke vaguely of an amendment to the Constitu
tion if necessary "to overcome some archaic interpretation never
intended by its framers." CR 74:2: 10402.
2 Beard, ojd. clt.. pp. 323-324. With regard to the 1936 cam
paign, Roosevelt has written as follows: "As to the choice of a
specific remedy to meet the undeniable fact that the majority of
the Supreme Court was in fact legislating on the desirability ra
ther than the constitutionality of lews, none was made during the
campaign. There were several possible alternatives of method.
Emphasis in the campaign was therefore properly placed on the goal
of Government which, through the cooperation of all branches,
would make democracy work." Public Papers, Vol. V, pp. 4-5.
Roosevelt, in particular, avoided attacks upon the Court as an
institution and made no public comments about the Court's "Re
publicanism" as he had during the 1932 campaign.'*' The need for
national labor standards, however, became increasingly prominent
in the President's speeches. In his "we have only just begun to
fight" speech in Madison Square Garden a few days before the

election, his conclusion as to "our objectives" included the fol
lowing declaration:
Of course, we will continue to seek to improve

working conditions for the workers of America —
to reduce hours overlong, to increase wages that
spell starvation, to end the labor of children,
to wipe out sweatshops.^
^ Carl B. Swisher, American Constitutional Development. 1943,

p. 941.
8 CR 75:1: 19.
E. The first month of the 1937 Congress
1. Introduction
When the third New Deal Congress met in January 1937, Presi
dent Roosevelt and the Democratic party leadership were directly
confronted by the question of what constitutional strategy to use
to reach the objective of national labor standards legislation*
The November election had, in the words of Roosevelt, fulfilled
the hope that "a great popular majority would express itself in
favor of the New Deal objectives."^ Now, the "definite promise"
of the President's Madison Square Garden speech, that the fight

g
would go on, remained to be fulfilled. That the labor standards
objective was among the first in priority and that, in one form
or another, legislation was due to be passed was clear beyond

doubt. Certainly the Court could not deter the Administration
from the objective itself; but if the legislative machinery was

to be moved in the direction of amending the Constitution or curb
ing the Court before legislation was enacted, delay was still
possible which might be attributed to the Court. Thus, the speed
with which the objective would be reached depended, in part, upon
the constitutional strategy which was to be followed.
^ Public Papers. Vol. V, p. 5. In the House there were 331

Democrats, 89 Republicans, and 13 independents; in the Senate,
76 Democrats, 16 Republicans, and 4 independents.
^ For the quotation, see loc. clt.
3*6
3. The Presidents position
No marching orders came from the President during the first
month of the new Congress. Some wage-hour hills and dozens of
bills and resolutions which were related to the objective were
introduced; but although the new Democratic majorities were ap
parently eager for action, the Congressional leaders marked time

pending the exertion of presidential leadership.
Roosevelt's annual message on January 6, 1937 and his second
inaugural address, two weeks later, did little more than restate
the objectives which had been heard during the campaign,'*' The
broad suppositions in the President's mind were clear, however.
That forty-eight States could act in "parallel and simultaneous"
fashion was "a proven impossibility," No formula for national
legislation was indicated, and nothing in the context of the an

nual message suggested that the words "Federal laws supplementing
State laws" were inspired by the second prison-goods case, which
had been decided two days earlier (to be discussed below). What
ever the formula, there was to be national legislation within the
Constitution as it stood and no attempt to secure amendment.
"The vital need," the President said on January 6, "is not an
alteration of our fundamental law but an increasingly enlightened

g
view with reference to it." Roosevelt appeared even more certain
^ See CR 84-86, 316-317, Note: CR in this section will refer

to the Congressional Record, 75th Cong., 1st Sess.
p
Roosevelt remarked in a cabinet meeting that the door was not
closed to amendment — presumably a clarifying rather than an
altering amendment. Joseph Alsop and Turner Catledge, The 168
Days, 1938, p. 39,
than he had as to the adequacy of the Constitution; in his an
nual message he quoted the document itself and also went back
to the debates in the Constitutional Convention. As for the
Court, Roosevelt spoke explicitly. After stating that there was

an imperative need for action by the United States and its legis
lative and executive branches to make democracy succeed, he ad
ded, "The judicial branch also is asked by the people to do its
part in making democracy successful."'*'
With a better understanding of our purposes,

and a more intelligent recognition of our needs as
a nation, it is not to be assumed that there will
be prolonged failure to bring legislative and judi
cial action into closer harmony. Means must be found
to adapt our legal forms and our judicial interpreta
tion to the actual present national needs of the g
largest progressive democracy in the modern world.
The Court and not Congress, it seemed, bore the burden of re
conciling the substance of modern legislation with constitutional
forms. In the inaugural address, there was no direct reference
to the Court; but the imperatives were equally clear: "The Con
stitution of 1787 did not make our democracy impotent."0
1 QR 86»
2
CR 85. Taken out of context, the latter sentence was not
entirely clear in its reference to the agency which should find
the necessary "means"; and in the reaction to the speech, the
sentence was to be quoted as evidence of sinister motives on the
part of the Administration.
3 CR 317.
3. Amending the Constitution
Although Roosevelt appeared to be ready to move ahead with

the process of legislating for labor standards, assuming that
he considered no measures to be necessary to increase the pros
pect of an "enlightened view" in the Court, it is probable that
a majority in Congress preferred "such clarifying amendment" as
the Democratic platform had promised to pursue if necessary.1
Both Senator Robinson, majority leader in the Senate, and Speaker
Bankhead expressed preference for that approach before delivery
of the President's annual message; and both reiterated their be-

g
liefs afterwards. Amendment of the Constitution was, said
Robinson, in a radio speech following the presidential message,
"the most practical way . . • and the safest way" — "a long,
tortuous process," Bankhead had said, but better to move "head

on" rather than to try curbing the Court.
Five constitutional amendments each designed to grant wj.de
national power, and lesser amendments, were proposed in the open

ing days of the new Congress; and Senator Ashurst, chairman of
the Senate's Judiciary Committee, announced that he would urge

3
adoption of the resolution which he had introduced in June 1936,
1 See above p. 3 Z 9 .
2 For Robinson, see New York Times. Jan. 3 and 7, 1937, pp. 1
and 4, In the opinion of Arthur Krock, Robinson "unquestionably
expressed the dominant feeling in Congress, irrespective of party."
Ibid., Jan. 5, 1937, p. 2£. For Bankhead, see ibid., Jan. 5 and
8 , 1937, pp. 15 and 1.
3 In the first four days, Representatives Ford CD, Cal.), Mar
tin (D, Col.), Faddis (D, Penn.), Pierce (D, Ore.), and Senator
The number of these proposals, however, was an inadequate in
dication of the interest and activity outside of Congress. Es
pecially since January 1936, when the A.A.A. had been invalidated,
there had been widespread discussion of the desirability of a
clear and far-seeing solution of the general constitutional pro

blem by means of an amendment clarifying or enlarging the powers
of Congress. Interest was particularly keen among reform groups
like the National Consumers' League, which like the National Child
Labor Committee had run afoul of the Supreme Court, some trade
union circles, social workers, and many prominent teachers of law
and government p- Electoral victory for the New Deal and the be
ginning of a new Congress made the time auspicious for a unified
Logan (D, Ky.) introduced resolutions granting Congress wide pow

ers over labor and other conditions. H.J. Resolutions 17, 18, 64,
93; CR 37, 39, 140. S.J. Res. 8 , CR 71. A similar resolution,
H.J. Res. 162, was introduced by Kvale (F-L, Minn.) on Jan. 27,
1937, CR 504, In addition, during the first month, resolutions
to amend the amending procedure of the Constitution were introduced
by Senators Pope (D, Idaho) and Lonergan (D, Conn.) and Represen
tative Barry (D, N.Y,); and a resolution providing for legisla
tive initiative by electors, by Representative Lemke (R, N.D.).
S.J. Res. 22, S.J. Res. 26, H.J. Res. 166, CR 113, 542; H.J. Res,
28, CR 38. H.R. 299 by Wadsworth (R, N.Y.) also concerned the
amendment procedure. CR 31.
Representative Fish (R, N.Y.) re-introduced his resolution to

empower each State to fix minimum wages for women and children.
H.J. Res. 30, CR 38. See also H.J. Res. 99 by Treadway (R, Mass.),
CR 140.
With regard to Senator Ashurst, see New York Times, Jan. 8
and 30, 1937, pp. 4 and 5. For his resolution, see above p.
The resolution was not re-introduced.
For the text of addresses on amending the Constitution deliv

ered at a meeting of the National Consumers' League on December 15,
1936, see CR Appendix 116-120. The National Consumers' League,
especially, had been disappointed by the Court's minimum-wage
rulings•
3s-p
drive for an amendment. Such an effort seemed to be particularly
timely because it was believed, in the words of Dean Charles S.

Clark of Yale Law School, that ". . . notwithstanding a certain
ebb and flow of constitutional doctrine, little real change is
now to be expected in the general rules of judicial review and

of restriction on legislative action except by way of constitu
tional amendment."'1' A New York Committee for Clarifying the Con

stitution by Amendment was organized immediately following the
election, and work on a draft resolution began " . . . upon the
theory that no fundamental changes in the Constitution are needed."
"It should be interpretive and clarifying," said the Committee,

"removing obstructions that have been crea.ted not by the Consti
tution itself but by certain unnecessarily restrictive opinions
p
of the Supreme Court." A National Committee became active in
January under the chairmanship of Grace Abbott, former chief of
the Children’s Bureau; and as late as March 13, Miss Abbott an
nounced that the Committee was continuing "its work of perfecting
the draft of a clarifying amendment to be ready at the proper
moment for Congressional consideration and action."5
1 CR Appendix 118.
2 New York Times. Jan. 14, 1937, p. 19. For the members of
the Committee, see loc. cit.
3 Ibid., Jan. 24, 1937, Sec. II, p. 1; February 18, 1937, p. 2;
March 14, 1937, p. 2.
o
-
3&!
4. Curbing the Court
The purpose of the Abbott Committee was, in effect, to curb
the Court indirectly by redefining Congressional power over such
matters as wages and hours and by limiting the scope of the due
process clause of the Fourteenth Amendment, thereby reducing the
area of judicial discretion with regard to policy. There were
many persons, on the other hand, who were in favor of dealing

directly with the Court itself; and in the first month of the
new Congress a number of bills and some resolutions were intro
duced to require an extraordinary concurrence in the Court,"*" to
limit the effect of judicial review,2 or to deny the Court's

rz
power entirely. In addition, there was introduced a less con
troversial bill which was of potential significance for wages
and hours legislations a bill improving retirement privileges

for which six members of the Court were immediately eligible.4
1 S. 437 by Pope; S. 1098 and S. 1276 both by Gillette CD, la.).

CR 110, 411, 611.
2 H.J. Res. 190 by Coffee (D, Wash.), CR 821, provided that
laws held void would be valid if approved by the electorate or
reenacted by Congress.
3 H.R. 44 and H.R. 51 by Ramsay (D, W.Va.) CR 24; H.R. 2265,
H.R. 2284, H.R. 4279, by Walter (D, Penn.), Faddis CD, Penn.),
and Coffee. CR 139 and 820. Representative Tolan (D, Cal.)
proposed to require the Court to render advisory opinions. H.J.
Res. 132, CR 313.
4 H.R. 2518 by Sumners (D, Tex.), CR 169. This bill was to

become law on March 1, 1937, 50 St at. 24. See also New York
Times, Jan. 18, 1937, p. 3.
A half-dozen bills were introduced which were concerned with

expediting appeals to the Supreme Court or limiting the power of
inferior courts; but the bills did not, as Senator Black said of
a bill which he offered, raise any question "as to the contro-
Among those who would like to have seen a direct attack
upon the Court, there was no coordinated effort like that repre
sented by the Abbott Committee."^ Early in January, after

lengthy preliminary discussion, plans were being made outside
of Congress to hold a widely representative conference of liber
als under the chairmanship of Senator Norris to discuss the con-

g
stitutional problem ana to decide on strategy. The planners
of the conference were not agreed on even the general direction
in which to move — on whether to seek a constitutional amend
ment or legislation affecting the Court or whether any extra
ordinary action at all was necessary. Senator Norris, indeed,
was sympathetic to simultaneous use of constitutional and legis
lative remedies and also further legislative movement in the hope

3
of "liberal" decisions. On January £6, Representative Maverick
of Texas, who himself believed that the Court should be deprived
of its power, announced in the House that the conference would be
versial issue" of the Supreme Court's power. CR 259. H.R. 2260,

introduced by Sumners on Jan. 8 , 1937, CR 139, was to become the
Judicial Procedure Reform Act on Aug. 24, 1937. 50 Stat. 751.
1 However, see the New York Times, Feb. 5, 1937, p. 2, which

reported that a non-partisan group of twenty-five representatives
had agreed to assure Roosevelt of their cooperation with any plan
to limit the powerof the Court. A majority of the group were said
to favor legislation requiring anextraordinary concurrence.
2 Ibid., Jan. 10, 1937, Sec. II, p. 3; Jan. 14, 1937, p. 3.
3 Ibid., Jan. 8 and 16, 1937, pp. 4 and 7. See also CR 2144
and Norris' comments during hearings on the O'Mahorfer bill (for
citation, see below p. ,fn. ), p. 85, Later, during consi
deration of Roosevelt's Court plan, Norris himself sponsored a
bill to require extraordinary concurrence in the Court and consti
tutional amendments limiting judicial tenure to nine years and
providing for ratification of amendments by popular vote, S. 1890
and S.J. Res. 103, March 15, 1937; S.J. Res. 134, April 19, 1937;
OR 2196, 3575. *
r
3SS
held in Washington in March.1

If wages and hours legislation was to await the taking of
an intermediate step, delay was apparent and due mainly to the
Court. Uncertainty and disunity in Congress, which would post
pone the taking of such a step, was due also to uncertainty on
the part of the President, who was reported to he planning his
p
own conference on means for limiting the power of the Court.
The President in turn was said to be awaiting further decisions
by the Court.3 The Wagner Act and the Social Security Act had
not yet been ruled upon; and a decision on the Washington State
minimum-wage law, which had been argued in September 1936 but
received little public notice, was pending. In the words of one
of Roosevelt's followers, Emanuel Celler, a senior member of the
House Judiciary Committee, "The Supreme Court must be made to
follow the election returns"; but whether it would be necessary
to "pack the court" with two new members depended, in Celler*s
opinion, on whether the Court would again hold Congressional
legislation void# 4
1 CR 507-508
^ On January 19, a presidential aj.de denied the truth of a
statement by Senator Minton (D, Ind.) that Roosevelt was planning
to hold such a conference soon after his inauguration. It was
also announced that studies of Congress vis-a-vis the Court had
been in progress for some time by the Attorney-General's office
but thus far without success. New York Times. Jan. 19 ana £0,
1937, pp. 1 and 9,
3 See ibid.. Jan. £4, 1937, Sec. IV, p. 7.
4 Ibid.. Jan. 11, 1937, p. 9.
5. Direct legislation
Meanwhile, some members of Congress, notably Black and Con

nery and Senator O'Mahoney, were urging that Congress proceed
directly with legislation; andamong their supporters were many
members who, like Celler and Morris, were ripe for action af
fecting the Court or the Constitution but had not excluded fur
ther legislative movement. Once again Black and Connery intro
duced thirty-hour week bills, and O'Mahoney re-introduced his
more limited bill to prescribe conditions under which corpora
tions might engage in interstate commerce.'1' Representative
Ellenbogen re-introduced a bill governing labor conditions in
the textile industry.2 The sponsors of a “little NRAM for bitu
minous coal, however, in deference to the Carter decision, omit
ted wages and hours provisions in a new bill which was introduced
H.R. 1606 and S. 175 by Connery and Black, Jan, 5 and 6, 1937,
and H.R. 2881 by Connery, Jan, 13, 1937, CR 34, 68, 214.
S. 10, introduced by O'Mahoney on Jan. 6, 1937, prescribed
child-labor standards but no wage-hour standards among the con
ditions to be met before a license to engage in commerce could be
issued to corporations by the Federal Trade Commission. The
Commission was directed to investigate trade and labor practices
and, whenever abuses were found which had not been eliminated
through collective bargaining, to recommend to Congress the set
ting of a minimum wage "for the lowest paid classes of unskilled
labor." For the text of the bill, see pp. 1-23 in Hearings be
fore a subcommittee of the Committee on the Judiciary on S.10.
United States Senate, 75th Cong., 1st and 3rd Sess., Jan. 25, 1937,
-March £4, 1938, 4 pts., 795 pp.
On Jan. 12, 1937, Senator Borah re-introduced a bill to pro
vide for the licensing of corporations engaged in commerce. His
bill did not regulate labor conditions, however. S. 721, CR 177-
179 and S. 579, CR 74:1: 255-256.
2 H.R. 238, Jan. 5, 1937, CR 29.
JSS~ ;
by Senator Guffey.1
In addition to these proposals, there was submitted by
Senator Schwellenbach an expanded version of his bill to divest
child-made goods of their interstate character: goods produced
by labor working over thirty hours a week were also to be sub

jected to state regulation; and a similar bill with regard to
p
wages and hours, was introduced by Senator Clark. A new em
phasis on legislation patterned after the Wilson and Webb-Kenyon
liquor acts had been stimulated by the Kentucky Whip and Collar
Co. case, decided unanimously on the day preceding the opening
of the new Congress, which upheld the second act dealing with
convict-made goods. Some hope was aroused that the decision

"foreshadowed a changed attitude toward the commerce power," but
4
this was generally doubted. The Court had not followed the
Dagenhart distinction as to the nature of the goods themselves;
but Chief Justice Hughes had distinguished rather than overruled
the Dagenhart case.

The decision gave some aid and comfort to those opponents of
national regulation who had offered the alternative of uniform
S. 3., Jan. 6, 1937, CR 64. On April £6, 1937, a new coal bill
with strengthened price-fixing provisions was enacted. 50 Stat. 72.
In the face of the majority’s injunction in the Carter case

with regard to the labor provisions of the Guffey Act, no one spon
sored a new bill to regulate labor standards in bituminous coal.
Representative Ramsay of West Virginia, a strong opponent of ju
dicial review, proposed a resolution on Jan. 5, 1937, to permit
eight named States to agree on a stabilization of their coal in
dustry. H.J. Res. 5, CR 37.
2 S. 26 and S. 723, Jan. 6 and 14, 1937, CR 65 and 219.
3 Kentucky Whip and Collar Co. v. Illinois Central R.Co.,299

U.S. 334.
4
See Jackson, op., cit. p. 203.
3&6
state action and had sought to channel Congressional energy in
the direction of augmenting the area of state policy, A number
of child-labor bills patterned after the convict-made goods
legislation were introduced early in January,'1' For Senator Cap
per of Kansas, one of the sponsors, such a bill was "only a stop
gap" until the Child-Labor Amendment was adopted,2 Opponents of
the Amendment, however, rallied to this approach with the argu-
5
ment that the Amendment was now clearly unnecessary. The Na
tional Child Labor Committee in reply charged that the opponents

"in a last shrewd move" to defeat the Amendment were seeking "to
divert public attention . . , and confuse the issue by offering
an ill-considered, and unworkable substitute."^ Yet the Court's
approbation of what was said to be a means of achieving national

standards without national legislation was not troublesome to the
advocates of national legislation. Although the Schwellenbach
and Clark bills may have implied that Congress could move no clos
er to national legislation than enabling the states to regulate

goods in interstate commerce, the bills could also be considered
as supplementary measures to enable advanced states to maintain
1 S. 59E, H.R. 2685, H.R. 2499, S. 668, H.R. 2683, H.R. 2891;
by Clark (D, Mo.), Connery (D, Mass.), Wigglesworth (R, Mass.),
Capper (R, Kans.), Culkin (R, N.Y.), Rees CR, Kans.); Jan. 11-13,
1937, CR 149, 195, 169, 176, 214.
On Jan. 27, 1937, Kvale (F-L, Minn.) introduced H.R. 3793 to
prohibit the transportation of child-made goods. CR 503. With
regard to taxing the use of child labor, see below p.
2 CR 625.
3 With regard to N.M. Butler and the American Bar Association,

see New York Times, Jan. 15, 1937, p. 6. For statements by Landon
and the N.A.M., see ibid., Jan. 8 ,and Feb. 7, 1937, pp. 1 and 34.
4 See ibid., Feb. 8 , 1937, p. 5, and The American Child, Vol.
XEX, No. 2, pp. 2-3. (Feb. 1937).
higher local standards than the national minimum. Connery him
self had introduced one of the child-labor bills patterned after
the convict-made goods legislation; and he, Black, and O'Mahoney
had added the same principle to their proposals for national

legislation.^ Whereas title I of the O'Mahoney bill "effectively
bans child labor, so far as interstate corporations are con
cerned.," said the bill's sponsor, the new title of the bill"pro
tects anti-child-labor States so far as intrastate commerce is

g
concerned."
Thus, there were in Congress proposals in the form of bills
to which President Roosevelt could have thrown his support. Out
side of Congress even more suggestions for immediate legislation
were available. Roosevelt himself, soon after the election, had

asked Secretary Perkins for a copy of the bill which she had had
prepared following the invalidation of the NRA.^ Other advisers
proposed enlarged powers for the Federal. Trade Commission, and

4
General Johnson led a new movement to use the taxing power. (On
February 1, a bill "to levy a tax on employers using sweatshop

labor" was introduced by Representative McFarlane of Texas, who
had proposed two weeks earlier to tax employers of child labor.
1 The principle was incorporated in the Black and O'Mahoney

bills cited above p.^sTY fn . / , and in separate bills by
Connery: H.R. 1985 and H.R. £880, Jan. 6 and 13, 1937, CR 101,
£14.
* Hearings . . . on S.1 0 , p. 117.
3 Perkins, op>. cit.. p. £55.

^ New York Times. Jan. 30 and Feb. 3, 1937, pp. 1 and 10.
5 H.R. 4100, CR 670 a lid, on Jan. 13, 1937, H.R. £908, CR £15.
3S#
During January, leaders of organized labor, Black, Connery, and
others were in consultation with the President*'1' On January 25,
hearings on the O'Mahoney bill began;^ and on January 29, a New
York Times headline announced: "New NRA Mapped by the President
in Single Statute*" In a press conference a few days later,

Roosevelt made clear that no plan had been adopted; but his re
marks also indicated that plans were being made for direct legis
lative action.^ On February 5, 1937, Roosevelt announced his
Court plan, however; and it was apparent that an intermediate
step was to be taken after all*
1 New York Times, Jan. 12, 22, £3, 27, and Feb. 2, 1937, pp* 13,
7, 8 , 1, and 1.
^ The Senate Judiciary Committee followed the lead of President
Roosevelt in going back to the debates of the Constitutional Con
vention for light on the meaning of the Constitution. The first
witness following Senator O'Mahoney, Professor Walton Hamilton
of Yale Law School, had examined the debates to determine the
meaning of "commerce" as an eighteenth century word. He testified
to the satisfaction of Senator O'Mahoney that the fathers were
"not dialecticians" and would have been "utterly bewildered" by
the modern judicial distinctions which O'Mahoney cited. The fath
ers were thinking, in O'Mahoney1s words, of "the entire commercial
life of the Nation." Hearings . . . on S.10, pp. 58-67. The next,
witness was also, like Professor Hamilton, not a lawyer — the
historian, Charles A. Beard. Ibid. pp. 69-80.
Beyond these introductory discussions, there was little refer
ence to constitutionality during the three sessions of the Com
mittee in January. Because the bill applied only to corporate
persons, O'Mahoney did not consider it a challenge to the Dagen
hart decision. Ibid., p. 85.
^ New York Times, Jan. 29, 1937, p. 1.
4 Ibid., Feb. 3, 1937, p. 10, When asked at a press conference

on January 26, 1937 whether his program for labor legislation de
pended upon the Court's decision on the Wagner Act, Roosevelt
replied simply "No," Public Papers. Vol. VI, p. 22.
6. Roosevelt’s Court plan
That President Roosevelt's plan to increase the number of
members of the Court was received with much surprise was due to
the secrecy of its preparation and the suddenness of its appear
ance.-1- The plan was conservative on its face and fully in keep-
1 For the President’s message to Congress and supporting docu

ments, including the complete draft of a suggested bill, see CR
877-881. Roosevelt's bill would have authorized him to appoint
as many as six additional members to the Supreme Court to assist
those justices who Yrere 70 years of age, had ten years of service
and did not retire in six months. The bill had similar provi
sions for inferior courts and made minor changes in judicial pro
cedure.
For an account of the preparation of the Court plan and the
maneuvering which followed, see Alsop and Catledge, op,, cit.
In the battle over the Court plan, "Respectability was in fierce
discord," write the Beards, whereas Respectability was united
in defense of the Court in 1896 following the Court's decisions
on income tax and labor injunctions. On. cit., pp. 353-354.
In 1937, criticism of the Court was widespread among the oppo
nents as well as the supporters of Roosevelt's plan. Thtis,
Senators Wheeler and Bone revived the Progressive party's ad
vocacy of recall of judicial decisions and proposed that any law
held unconstitutional by the Supreme Court should be valid if
reenacted by a two-thirds vote of Congress after a general elec
tion, This change was to be effected by constitutional amend
ment, however, and not by legislation, S.J. Res. 80, Feb. 17,
1937, CR 1273; New York Times, Feb. 22, 1937, p. 4. Also among
the opponents of Roosevelt's stratagem was Senator O'Mahoney,
who believed that the labor standards objective could be met
directly by legislation.
Referring to Wheeler's amendment, Roosevelt later described
it as "an attack upon the very function of the Court and upon the
legitimate exercise of that function. I was not prepared,nor
did I deem it advisable, thus to undermine one of the foundations
of our democracy." Public Papers» Vol. VI, p. LXIII.
The President's bill was introduced by Senator Ashurst, who

had spoken against curbing the Court and had advocated a consti
tutional amendment of Congress' power. "I can tell you one thing
he had said on January 7, 1937, "I know the President has no in
tention of enlarging the Court." New York Times. Jan. 8, 1937,
p. 4, S. 1392, Feb. 8, 1937, CR 956. Maverick had introduced the
bill in the House on February 5, 1937, H.R. 4417, CR 946,
ing with Roosevelt's recent comments on the problem of enacting
constitutional legislation and his reactions to the Court's de
cisions over the past two years. What was less clear was the
extent to which the plan was the result of fear that the Court,
unless changed, would hold labor standards legislation void.

This question will be considered later, after examination is
made of Roosevelt’s argument.
The presidential case was made on three major occasions —
in a message to Congress on February 5, 1937, in a Democratic
Victory Dinner speech a month later, and in a radio speech to the
country immediately preceding the opening of Senate hearings.^

The message called for "a constant infusion of new blood in the
courts" but said nothing of the necessity of new blood as a
condition precedent to wage-hour and child-labor legislation.

The intimate connection of this legislation and the Court plan
was clear in the speeches addressed to the country.2 Referring
to labor standards and also to an agricultural program, Roosevelt
repeated his campaign promise that "we have only just begun to
fight" and. went on to say, ". • . w e cannot afford either indi
1 For the message, see CR 877-881; for the speech of March 4,

1937, see CR Appendix 422-423; for the radio address on March 9,
1937, see Senate Report 711, 75th Cong., 1st Sess.* pp. 41-45.
The Senate Judiciary Committee hearings began on March 10, 1937.
2 The connection was obvious enough, however, at the outset
of Roosevelt's campaign for his plan. Thus, Senator King of
Utah, a conservative Democrat and opponent of wage-hour legisla
tion, disapproved the plan as "an adroit way of securing the ap
proval of legislation that is tainted with unconstitutionality."
New York Times. Feb. 6, 1937, p. 9.
3(>l
vidually or as a party, to postpone or run from that fight on
advice of defeatist lawyers,"
But I defy anyone to read the opinions concerning

A,A.A,, the Railroad Retirement Act, the National
Recovery Act, the Guffey Coal Act, and the New York
minimum-wage law, and tell us exactly what, if any
thing, we can do for the industrial worker in this
session of Congress with any reasonable certainty
that what we do will not be nullified as unconsti
tutional,1
"Doubts on the ability of the elected Congress" to pass necessary

g
legislation had been cast by the courts themselves; the courts
had also incited disobedience toward existing laws. The Presi
dent proposed, therefore, "to remove those doubts and difficul
ties,"4
At the conclusion of his message to Congress, Roosevelt had
stated that if the "aim" of his recommendations was achieved,
". ♦ . w e may be relieved of the necessity of considering any
fundamental changes in the powers of the courts or the Constitu
tion of our Government — changes which involve consequences so

far-reaching as to cause uncertainty as to the wisdom of such
course,"5 In the speeches, this threat of radical action was ab
sent; but a challenging remark was made:
^ CR Appendix 423.
£ S. Rent. 711. p. 41.
3 Court injunctions had paralyzed the machinery set up under the

National Labor Relations Act and the completion of T.V.A. plans,
said Roosevelt, It was hoped, he said, that the N.L.R.A. might
yet escape the Court's condemnation. CR Appendix 423,
The constitutionality of the N.L,R.A. was argued before the

Supreme Court on February 10-11, 1937, a few days after announce
ment of the Court plan. The case was still under consideration
at the time of Roosevelt's speeches three weeks later.
36%
Fundamentally, if in the future America cannot trust

the Congress it elects to refrain from abuse of our
constitutional usages, democracy will have failed far
beyond the importance to it of any kind of precedent
concerning the judiciary
Roosevelt did not elaborate on any of the implications of this

statement; he did not argue that Congress should be free to act
without any judicial restraints. His diagnosis of the problem

of constitutionality could be compared with his diagnosis of the
problem of depression. Like the country, "the Court as an in
stitution" was sound; difficulties arose from the actions of
p
"a few men." A temporary majority of the Court, following
"'personal economic predilections,"' had been acting for four
years as "a policy-making body."*5 Roosevelt supported this
"accusation" in familiar style — by quoting from the dissent

ing opinions of "most [not "the most"] distinguished Justices
of the present Supreme C o u r t . H e spoke, also, in the name
4 Loc. cit. In neither speech did Roosevelt refer directly to

his plan.
5 CR 879.
1 S. Rent. 711, p. 44.

2
"Our difficulty with the Court today rises not from the Court
as an institution but from human beings within it. But we cannot
yield our constitutional destiny to the personal judgment of a
few men who, being fearful of the future, would deny us the neces
sary means of dealing with the present." Loc. cit.
3 For the first quotation — itself a quotation from Stone's
dissenting opinion in the TipaLdo case — see CR Appendix 423;
for the latter quotation, see S. Rept. 711, p. 42.
4 Roosevelt quoted from Hughes' dissenting opinion in the Rail

road Retirement case and Stone's dissenting opinions in the A.A.A
and the Tipaldo cases. Thus, he added, the statement of Hughes
(by now, certainly a classic one) about judges and the Constitu
tion was "perfectly clear." Loc. eft.
36J
of the Constitution, which “like the Bible . . . ought to be
read again and again.'1-*- In short, the President was asking
Congress, a trustworth body, to curb judicial abuse; and his
request was in hallowed language:
We have, therefore, reached a point as a Nation where

we must take action to save the Constitution from the
Court and the Court from itself . . . . In our courts
we want a government of 1 m s and not of men,2
In his radio speech, Roosevelt gave his answer to the argu
ment that the constitutional amendment procedure should be followed.
“No substantial group” in or out of Congress agreed on any one a-
mendment, he said. To secure agreement would take months and years,
and then the securing of extraordinary majorities in Congress and
among the States could be blocked. Finally, amendments were sub
ject to the Court's interpretation. These reasons were presented
to the advocates who were honest and by implication naive. The
honest advocates were also informed that they could not count upon
their bedfellows — the second group of advocates, those who fun
damentally objected to modern legislation.
Now they are making a last stand. And the strategy

of that last stand is to suggest the time-consuming
process of amendment in order to kill off by delay
the legislation demanded by the mandate.3
1 Loc. cit.
2 Ibid.. p. 43. When the Senate Judiciary Committee reported

Roosevelt's bill adversely, the majority's report said of the bill,
“Its ultimate operation would be to make this Government one of
men rather than one of law . . . .“ Ibid. p. 23.
3 Ibid., pp» 44-45. Earlier in his remarks, Roosevelt quoted

from the 1936 platform and explained that it had promised to seek
an amendment "only if every other possible means of legislation
were to fail." Ibid.. p. 43.
F. 108 Days — February 5-May 24. 1957
1. The President
If President Roosevelt had been prepared to follow his
constitutional convictions early in 1937, he might have proceeded
directly on the basis of the Black-Connery bills, the Perkins

draft, or one of the other proposals which assumed that no al
teration of the Constitution or the Court was necessary. By

giving first priority to his Court plan, however, he indicated
that he was not yet ready to give the support of the Acministra-
tion to a labor standards bill.^ Not until May 24, 1937 did he
g
announce that "the time has arrived" for Congress to act. In
the interim, the political energies which might have propelled

a bill to final passage were absorbed in the emotional battle
over Roosevelt's Court plan. The drama of this battle was matched
by the dramatic change within the Court itself. After the Court
plan was announced, there followed "a lost battle which won a
war," in the words of Roosevelt, speaking on the day before he
signed the Fair Labor Standards Act.
The attitude of the Supreme Court towards constitutional

questions is entirely changed. Its recent decisions are
eloquent testimony of a willingness to collaborate with
the two other branches of government to make democracy
work.3
•*- After his Court message, Frances Perkins has said, "the
President . . , notified me that the wage-hour legislation would
have to wait." Op. cit., p. 256.
2 See below p. 0 7*. 3 j ^ e 24, 1938. CR 75:3: Appendix
Nevertheless, nearly five months had been lost during which a
large majority had sat in Congress presumably prepared to follow
the President's lead toward a popular legislative objective. To
some extent the delay was due to fear that the Court would de
clare a labor standards bill void; and the decision, finally, to
move ahead was due in part to a new confidence that the Court
would look favorably upon such a bill. Yet there were also other
reasons and motives for the President's actions.

There was, in the first place, some apprehension about legis
lation which was already in force but had not been ruled upon by
the Court — notably the Wagner Act.^ The expectation that new
judicial decisions were forthcoming was reason for a short legis
lative delay and also for any proposal which would put pressure
on the Court.^ The presidential message of February 5 was, in
deed, delivered only a few days before arguments were heard by the
Court on the constitutionality of the Wagner Act. Two months went
by before the Labor Board cases were decided favorably by a new
majority of five. The "switch in time" of Justice Roberts had
become known two weeks earlier in the Parrish case when he had
joined the Tipaldo minority in upholding a Washington State minimum-
3- See Arthur Krock, New York Times, Feb. 85, 1957, " . . . the
administration lawyers are having a tough time trying to write
the new wages-and-hours legislation . . . ." Loc. cit.
^ Speaking of his Court plan and the change in the Court's in
terpretation, Roosevelt said later, "I feel convinced . . . that the
change would never have come, unless this frontal attack had been
made . . , Public Papers. Vol. VI, p. LXVI.
3 National Labor Relations Board v, Jones & Laughlin Steel Corp.

(and the four following cases), 301 U.S. 1, April 12, 1937,
J6>6>
wage law for women and minors.1 The Court had expressly over
ruled the Adkins case of 1923, and the barrier to minimum-wage
legislation — at least for women and minors — had been levelled.
In the Labor Board Cases, the new dissenters charged that the
majority had departed from "well-established principles" which
had been followed in the Schechter and Carter cases.2 Chief

Justice Hughes reaffirmed, those principles and saw in the facts
at issue "the close and intimate relation which a manufacturing
industry may have to interstate commerce."^ According to Senator
Wagner, the Court had "put aside the narrow notion of the horse-
and-buggy days."4
West Coast Hotel Co. v. Parrish, 300 U.S. 379, March 29, 1937.
On the same day, in Sonzinsky v. U.S., 300 U.S. 506, the Court
declined to inquire into "hidden motives which may move Congress"
in exercising the taxing power and upheld the National Firearms
Act of 1934. See above p. 3 A * , fn.
An incidental by-product of the Parrish decision was a state

ment from the respected Chief Justice setting forth the conditions
for reconsideration of the Adkins case. His approach to stare
decisis could be used, and was to be used, as a guide to legis
lators in their consideration of such a precedent as the Dagenhart
case. Hughes said (at 390):
The importance of the question, . .. the close division
by which the decision in the Adkinscase was reached,
and the economic conditions which have supervened, and
in the light of which the reasonableness of the exercise
of the protective power of the State must be considered,
make it not only appropriate, but we think imperative,
that in deciding the present case the subject should
receive fresh consideration.
An equally notable discussion of constitutional duty appeared
in Justice Sutherland's dissenting opinion. (400ff.). Indeed,
Sutherland dismissed the notion of "self-restraint" as "ill con
sidered and mischievous." "The check upon the judge," he said,
"is that imposed by his oath of office, by the Constitution and
by his own conscientious and informed convictions; and since he
has the duty to make up his mind and adjudge accordingly, it is
hard to see how there could be any other restraint." (at 402).
3i>y 3"
Still the signal for Congress to act did not come from the
President -until six more weeks had gone by. Doubts were ex
pressed as to what the Court would do. "With the Guffey coal
case and the Wagner act decisions standing as the lav; of the
land," said Thurman Arnold, of the Department of Justice, "I
defy anybody to say what the commerce clause is'^ The President
shared this dissatisfaction and publicly stated that a 5-to-4

g
margin was "too uncertain." Yet judicial uncertainty alone
did not account for continued postponement of presidential in
itiative.® At the time of the Wagner Act decision, opponents
of the Court plan had consumed, three weeks of the hearings be
fore the Senate's Judiciary Committee and were geared for two
weeks more.4 The President's leadership and prestige were being
For the "switch in time" quotation, see T.R. Powell, "From

Philadelphia to Philadelphia," American Political Science Review
32:1, 24 (Feb. 1938).
2 301 U.S. 1 at 76.
® Ibid.., at 43.
4 New York Times, April 13, 1937, p. 20.
1 Ibid.. May 6, 1937, p. 19.
2 Ibid.. April 14 and 16, 1937,pp. 1 and 22; Alsop and Catledge
on. cit., pp. 154-155, 209; Public Papers, Vol. VI, pp. 153-155.
3 Although there was uncertainty about the status of constitu

tional law, the President's advisers did believe that the Court's
shift was more than a temporary aberration. Assistant Attorney-
General Jackson, when asked early in June why he had. hope that
the Court would overrule the Dagenhart case, replied, "the reversal
of the minimum wage case is very convincing that the Court has a
different attitude . . . ." The Dagenhart case would have been
overruled by the Court in its opinion on the Wagner Act, Jackson
thought, if such a ruling had been necessary to its decision.
Page 42 of Hearings cited, below p. 3 8 / fn. J ■
4 Hearings before the Committeeon the Judiciary on S. 1392.

United States Senate7“75th Cong., 1st Sess., March 10-April 23, 1937
6 pts., 2, 040 pp. ~ ’
severely tested; and, although there were grounds for new con
fidence in the constitutionality of a labor standards bill, the
Court plan continued to receive first priority,1

The very popularity of labor standards legislation, on the
other hand, suggested another reason why the President had de
cided to postpone initiative in behalf of a bill: such legis
lation might serve as bait to win support for a judicial reform
which was considered by Roosevelt to be of importance for the New
Deal generally as well as for a wage-hour law.^ The Court plan
disrupted the Democratic majority, however; and rifts became ag
gravated when Roosevelt persisted in M s demand during the month

following the Court's approval of the Wagner Act, The President's
decision to proceed with a wage-hour bill, according to Secretary
Perkins, was finally made because such a bill would serve "partly
as a measure for reuniting the party,"
An additional explanation for the postponement of legisla
tion in February and for the decision in May to move ahead is to

be found in the degree of readiness of both Congress and the Ad
ministration for detailed consideration of policy. Although the
objectives of a wage-hour bill found wide support, there was not

only great diversity of opinion about constitutional form during
the first month of the new Congress but also a lack of wide agree
ment with regard to standards or administrative flexibility. The
thirty-hour standard had gained little new support; and the A. F,
1 See the remarks of Connery on April 20, 1927, CR 3648-3649,

and New York Times, April 14, 1937, p, 14.
^ See Turner Catledge, New York Times, Feb. 26, 1937, Sec. IV,
p. 3.
3 Perkins, ojd . cit., p. 256.
of L. and the C.I.O. continued to display reluctance to commit
themselves to action, particularly with regard to wages, which
might endanger collective bargaining.^ During the months which
followed, responsibility for working on questions of constitu

tionality and policy was divided within the Administration; and,
with regard to policy, a series of conferences were held in order
to draft a bill which would command the widest support. Late in
February, the President and Secretary Perkins announced that a
tentative bill was ready; but it . . undergoes some change at

g
every conference,11 said Miss Perkins. Following the Wagner Act
decision, there were reports that northern industrialists, who

had tended to support a wage-hour bill because of wage competition
with the South, were increasingly sympathetic because the disad
vantage of federal regulation had been lessened by the newly-
3
established position of organized labor. Widespread agreement
1 New York Times, Jan. 10 and £7, 1937; Sec. IV, p. 6 and p. 1.
See also Hearings . . . on S. 10. pp. 84-85.
2 The task of establishing a constitutional base for the bill

had apparently become so special!zed that exclusive delegation
to lawyers was thought necessary; whereas another group, in
Secretary Perkins' words, was formulating a draft . . as an
expression of what we believe and know to be desirable, without
regard to legal or constitutional hazards . . . New York Times,
Feb. 24, 1937, p. 15.
During hearings on the Administration's bill, Assistant At

torney-General Jackson denied that the bill was "hurriedly thrown
together" and said: "The difficulty with the bill, perhaps, is
quite the opposite. It is the result of too careful study, if
anything. It results in some overlapping which is unavoidable."
Page 54 of Hearings cited below p. J<57 , fn. /,
370 '
was still not secured early in May when there were reports of an
undercover fight between some labor and industrial groups on the
question of a proposal from the Administration for a board with
wide powers,^ nor had extraordinary agreement outside of Con

gress been reached when the Administration's bill was introduced
before the end of the month. But Congress had become restive and
was threatening to move ahead without presidential direction. In
these circumstances, the President could not afford further delay.
1 Loc. cit. and ibid., May £4, 1937, p. 1.
2. Congress
Congressional initiative appeared to be stimulated both by

the new judicial dispensation and by discouragement with the
Court plan — perhaps also by opposition to the Court plan.
During the two months following Roosevelt's message of February 5
1937, Congressional action with regal'd to labor standards had
come almost to a standstill, whereas some thirty bills and reso
lutions were introduced affecting the Court In March, oppo
nents of child labor, particularly, showed signs of readiness

for Congressional legislation. Four States had ratified the
Child-Labor Amendment during January and February, and only eight

2
more States were necessary. Early in March, however, the New
•*- Hearings on the 0 'Mahoney bill had been suspended late in

January but were renewed briefly in late February and early March
Bills utilizing the convict-made goods formula were intro

duced by Representatives Millard (R, N.Y.) and Bacon (R, N. Y.)
with regard*to child-labor and by Harlan (D, Ohio) with regard to
State codes of fair comoetition. H.R. 4651 and H.R. 5377 on
Feb. 11 and March 5, 1937 and S. 1667 on Feb. 22, 1937. CR 1179,
1939, 1468.
On Feb. 22, 1937, Senator Maloney (D, Conn.) introduced a

maximum-hours bill based upon the prohibition-of-interstate-
shipment formula, S. 1667, CR 1468.
Since the debate on Roosevelt's Court plan is not a part of
the present study, a discussion of proposals made after February
5, 1937 and affecting the Court is not included. Attention was
centered - Roosevelt's bill commanded the main attention, and
other bills and resolutions took on the character of counter pro
posals. For one example, see above p. 3 S'? fn. /.
2 The American Child, Vol XIX, No. 3, p. 1. (March 1937). A

high point of popular approval for the Child-Labor Amendment was
reported on February 21,• 1937 by the American Institute of Public
Opinion. In answering a question which used the exact wording of
the Amendment, 76 per cent of the persons interviewed, including
a majority in every State, indicated approval. Loc.. cit.
37^
York State legislature rejected the Amendment, and on March 19

the Council of State Governments reported that the prospect of
ratification in 1937 was slight,'1’ Shortly after the decision in
the Parrish case on March 29, new child-labor bills were intro
duced; and Senator Edwin Johnson of Colorado, who had introduced

a modified version of the 1916 child-labor law, expressed his
hope that the Court which had overruled the Adkins case would
"display equal wisdom and courage" with regard to the Dagenhart

p
case. Additional bills were introduced following the Labor Board
cases; one bill, which incorporated both the 1916 and the prison-
goods approaches, was sponsored jointly by Johnson and by Senator
Wheeler, who was probably the leading opponent of the Court plan.
1 New York Times. March 10 and 20, 1937, pp. 1 and 13. The
New York Assembly had rejected the Amendment by a vote of 102 to
42; nevertheless, the National Child Labor Committee expressed
confidence that the Assembly would reconsider its vote before
adjournment. "Only the first skirmish in the battle" had been
lost. Ibid., March 10, 1937, p. 10.
Within the month following New York's action, modified child-

labor amendments were proposed by Senators Borah and Vandenberg
and Representative Hamilton Fish, Jr. S.J. Res. 112, S.J. Res. 116,
H.J. Res. 308; March 24 and 29 and April 1, 1937; CR 2670, 2803,
3057. In a speech on March 2, 1937, in which Fish asserted that
the pending Child-Labor Amendment was not communistic, it appeared
that the efforts of Beveridge in behalf of a child-labor law had
been forgotten, Beveridge, said Fish, had been the original spon
sor of a child-labor amendment thirty years earlier. CR 1768.
2 S. 2068, H.R. 6102, and H.R. 6214 by Johnson (D, Col.), Tolan
(D, Cal.) and Martin (D, Col.), CR 3119, 3116, 3277. For the quo
tation, see New York Times. April 5, 1937, p. 6,
3 S. 2226 was introduced by Wheeler and Johnson on April 20, 1937,

CR 3615. For the bill's later history, see below pp. . Dur
ing the week preceding the Parrish decision,- Wheeler had introduced
S. 1976, patterned solely according to the convict-goods formula.
CR 2670. S. 2345 by Barkley (D, Ky,), May 6, 1927, was practically
identical with the 1916 act. CR 4224. Four additional child-labor
bills were introduced in the Housei H.R. 6608 by Martin (D, Col.),
H.R, 6770 and H.R, 6807 by Bacon CR N v ^ an^ u ,,
(D, H.Y.); SB 3772, 4084, 4lls° 4217. ’’ 6871 by Mead
3 ?3
On May 12, while the Judiciary Committee was considering the Court
bill in executive session, and while Roosevelt himself was still

on a two-week fishing trip, the Senate Committee on Interstate
Commerce began to hold hearings on five child-labor bills, includ
ing the bill sponsored by Wheeler and Johnson.^
At the same time, hearings were under way in the House on

£
the Ellenbogen textile bill# Interest was being renewed in the
bill sponsored by Senator O'Mahoney, who was opposed to Roose

velt's Court strategem; and another series of hearings was ex
pected to begin on a maximum-hours bill introduced by Senator
Hearings before the Committee on Interstate Commerce, United

States Senate. on S. 592. S. 1976, S. £068# S. 2226, S« 2545;
75th Cong., 1st Sess., 192 pp., May 12, 18, and 20, 1937.
The National Child-Labor Committee now advocated national

child-labor legislation although it continued to support an am
endment, which would allow wider coverage than that of a law
based upon the commerce power. "Failure to complete ratification
this year . . . together with recent decisions of the United
States Supreme Court which suggest that the constitutionality of
a new federal child labor law might be upheld, have given a new
impetus to consideration of federal legislation." The American
Child, Vol XIX, No. 5, p. 2 ( M y 1937),
Hearings before a Subcommittee of the Committee on Labor,

House of Representatives. on H.R. 258, 75th Cong., 1st Sess. 9
pts., 573 pp., May 10-26, 1937. The chairman, Keller of Illinois,
announced that following the subcommittee's hearings of the pre
ceding year the bill had once again been rewritten "in view of
the decisions of the Supreme Court." Ibid.. p. 32.- The major
task of rewriting had been done, apparently, before the Court's
decision on the Wagner Act. " . . . since this bill was drafted,"
said Miss Perkins on May 26, i*. , . a great deal of water has gone
under the bridge in regard to-the Constitution." Keller agreed
and remarked that the bill had been "also stretched * . » somewhat."
Ibid., p. 553. In opening the hearings, however, Keller took pains-
to explain that the subcommittee was going to move "very carefully."
"We are up against the question," he said, "of what-the Supreme
Court will permit us to do." Ibid., pp. 32-33.
J7Y
M a l o n e y R o o s e v e l t was said to be in favor of the Ellenbogen
bill, and there was talk once again of enacting “little NRAs."2
The advocates of interstate compacts also had new hope in the
light of the Parrish case.3 Some members, in addition, were ex
pressing a desire for a recess.4 Presidential leadership was

needed and was forthcoming on May 14, when Roosevelt on his re
turn from his two-week vacation announced a “must'' calendar for

the session which included both the Court bill and a labor stand
ards bill.5
After almost two months of inactivity on the O'Mahoney bill,

the Judiciary Committee resumed hearings on April 27 and May 13,
1937.
On April 29, Roosevelt suggested that a census of unemployment

was unnecessary. On the following day, however, the Senate's
Commerce Committee voted to hold hearings on the Maloney bill
(cited above, p. 3 7 / fn- / ), which provided for a sliding scale
of maximum hours based upon a census of unemployment. New York
Times, April 29, 1937, p. 1.
2 New York Times, May 17 and 9, 1937-, p. 2 and Sec. II, p. 4.

3
On the day after the Parrish decision, March 30, 1937,
Representative Tobey (R, N.H.) introduced H.J. Res. 301 granting
the consent of Congress to the minimum-wage compact of May 29,
1934 which had been ratified by Massachusetts and New Hampshire.
CR 2933. One reason for support of the resolution was not that
the Federal government lacked power over minimum wages but that
such power had not been exercised. See Senate Report No. 820,
75th Cong., 1st Sess., June 28, 1937, (pp. 1-5), p. 3. The re
solution was superseded on April 13, 1937 by H.J. Res. 321, which
included Rhode Island. CR 3452. This resolution became Public
Resolution 58, 50 Stat. 633, on Aug. 12, 1937.
5 Ibid.. May 15, 1937, p. 1.
In the week preceding introduction of the Administration's
wage-hour bill, when progress on the enactment of such a bill
seemed to be near, the center of attention shifted rapidly from
the Court and judicial barriers to Congress and legislation. On
May 18 the battle over the Court bill came finally to a head
when the Senate's Judiciary Committee voted ten to eight to re-
1
port the bill adversely, but this action was anti-climactic
for those persons who shared the widespread feeling that the war
had already been won. Any doubts on this score were dispelled
on the same morning that the Judiciary Committee reached its
decision: news was received that Justice Van Devanter, inci
dentally one of the two remaining justices of the Dagenhart
majority, had availed himself of the privileges of the new re
tirement act of March 1, 1937 and would retire at the end of the
term.
On the following day, Senator Black dropped in the hopper
an official copy of the 1916 child-labor law from which he had
crossed out the statutory legend.^ Two days later, Fred A.
Hartley, Jr., a Republican member of the House Labor Committee
who had opposed the Ellenbogenbill in 1936 as "idle and futile"
in the absence of a decision by the Court on the Guffey and Wagner
1 Ibid.. May 19, 1937, p. 1.

2 Ibid.. May 19, 1937, p. 1. The act of March 1, 1937 is
cited above p. , fn. y.
® S. 2454, May 19, 1937, CR 4749; New York Times. May 20,
1937, p. 1.
Acts, introduced a 1)111 governing fair trade practices and labor
standards.-1- "Labor • . • has sought deliverance, from exploita
tion • • • elimination of child labor and • • . fair minimum
wages and maximum hour standards," said Hartley. His bill pro
vided for these standards through the licensing of business by
the F.T.C, The requests of industry for "responsibility" on the
part of labor were also to be met, said Hartley, by licensing

2
trade unions. On May 23, there was published a bulletin of the
National Association of Manufacturers which said nothing directly
about the constitutionality of wage-hour legislation but opposed

wage and hour standards which were "arbitrary." The bulletin
concluded with the following statement: "Congress can and should
enact . . . legislation utilizing its powers over interstate com

merce to eliminate the gainful labor of children under 16 years
of age."3 It was on the next day, May 24, 1937, that President
Roosevelt at last announced to Congress that "the time has ar
rived for us to take further action to extend the frontiers of
social progress."4
1 H.R. 7180;,: May 21, 1937, ££ 4943. See above p.
2 New York Times, May 22, 1937, p. 5.

3 Ibid.. May 24, 1937, p. 7. The concluding statement was
qualified by an official of the N.A.M. during the hearings in
June on the Administration's bill; the 1916 formula was opposed
for reasons of constitutionality, and the prison-made goods
foimula was advocated. Earlier, with reference to the two
child-labor cases, the redoubtable James Einery had criticized
"the gratuitous presumption that Justice Holmes did not change
his mind with respect to his own dissent . . . ." Pp. 664, 680-
682, and 627 of Hearings cited below p. fn. /.
4 CR 4960.
IV. From M a y 1937: “the time has arrived.”
To June 1958; the Fair Labor Standards Act
A. The Legislative Leaders
1. The President
“Whenever legalistic interpretation has clashed w i t h con
temporary sense o n great questions of broad national policy,
ultimately the people and the Congress have had their way."
This conclusion was drawn b y President Roosevelt I n a speech
on September 17, 1957 commemorating the 150th anniversary of
the signing of t h e Constitution.'1' "But that word 'ultimately',11
Roosevelt went on to say, "covers a terrible cost," including
20 years already -- and no one knows how many more

are to come — to obtain a constitutional interpre
tation that will let the Nation regulate the shipment
in national commerce of goods sweated from the labor
of little children*
Legalistic interpretation ancj cries of "unconstitutional," said
Roosevelt, "have always b e e n overruled." Thus, "58 of the high
est-priced. lawyers" had declared the Wagner Act to be unconsti
tutional; but "first a national election and later the Supreme
Court overruled them."
In his message of M a y £4, 1957, recommending passage of
a fair labor standards bill, Roosevelt's readiness to move on
to the establishment of new national policy was clear; but
w h e t h er the w a y was o p e n because the Supreme Court h a d levelled
1 CR 75:2; Appendix 18-19.
constitutional barriers was a question not answered. The
message, which did have something to say about the constitu
tional problem, is especially interesting because it was to
be reprinted in the reports of the Senate and the House commit
tees, reports which otherwise made little reference to consti-

2
tutionality.
At the outset, Roosevelt stated that the action which he
was asking was "within the common-sense framework and purpose
of car Constitution"; near the end of the message, he noted that
intra-state matters were of course outside of the scope of the
proposed legislation and observed that the legislation should, be
"a stimulus and not a hindrance to State action." In between
these comments there was no discussion of the various constitu
tional theories or precedents which underlay the Administration1
bill, with one exception. Nor was any reference made to the
recent changes in the position of the Court or in the Court's
personnel. Presumably, the President could, have made the same
constitutional case early in February as well as late in May.
The exception, referred to above, was a discussion of
Hammer v. Dagenhart which constituted nearly one-third of the
message. The Dagenhart case had. not been overruled; and if
considered alone, it stood squarely in the path of that part
of the bill which was patterned after the 1916 Act. The sug
gestion had often been made, especially after the Labor Board
Cases, that the Dagenhart precedent was dead. But Roosevelt
1 CR 75 : 4960-4961
^ Senate Report N o . 884. 75th Cong., 1st Sess., July 8, 1957

(pp. 1-9), pp. 1-3; House Report N o . 1458, 75th Cong., 1st Sess.
Aug. 6, 1937 (pp. 1-23), pp. 5-7.
ignored the changing trends in the Court; and, taking up H o l m e s ’
famous dissenting opinion, he proceeded directly to beat the
dying, if not dead, precedent. '’Surely," said Roosevelt of
Holmes, "the experience of the last 20 years has only served to
reinforce the w i s d o m and rightness of his views." On t h e other
hand, the m ajority had laid down
a rule of constitutiohal l a w w h i c h has ever since

driven into impractical distinctions and subterfuges
all attempts to assert the fundamental power of the
National Government over interstate commerce.
Roosevelt concluded that ". . . although Mr. Justice Holmes
spoke for a min o r i t y of the Supreme Court, he spoke for a
majo r i ty of the American p e o p l e . ” ^ Here was a bold rationale
for forging ahead which, in the absence of reasons for acting
otherwise, should have been as sound in January or in 1935
as it was in M a y 1937 <,
Additional pronouncements were due f r o m the President
before the fair labor standards bill was finally to be enacted.
On the day before the bill was signed, in June 1938, Roosevelt
recalled the lost battle for his Court plan; but the w a r had
been won, he said, and a labor standards bill — one of the

2
"real objectives" of his p lan — had been passed. The war for
a sympathetic Court had apparently been w o n by May 24, 1937.
After that date, Roosevelt made no further references to the
constitutional p r o b l e m in speeches urgi n g Congressional action
1 "The words ’m i n o r i t y ’ and ’m a j o r i t y ’ were underlined in

the text read to applauding branches of Congress by the reading
cl e rks.” N e w York Times, M a y 25, 1937, p 0 21„
^CR 75:3: 3134.
1
on a labor standards bill. Not even an analysis of opposition
to the bill, in the P r e s i d e n t ’s message to Congress on January

2
3, 1938, included any mention of cries of ’’unconstitutional,”
Constitutionality as a ground of opposition had become relatively
unimportant in Congress, and R o o s e v e l t ’s unconcern about
constitutionality, once the A d m i n i s t r a t i o n ’s bill had been
introduced, reflected the change.
In his message to a special session of Congress on N 0vember

15, 1937, Roosevelt did refer to t h e decisions upholding the
W agn e r Act and the Social Security Act as evidence for his
belief that "the courts themselves are coming to have increasing
regard for the true nature of the Constitution . . . These
remarks w e r e made as part of an argument for an adequate farm
act. No reference to constitutionality was made in R o o s e v e l t ’s
restatement of the need for a labor standards bill. CR 75:2: 5-6
p
Some opponents, Roosevelt did say, were ’’sincere m
believing that an effort thus to raise . . . purchasing power
o . o is not the business of the Federal Government." CR 75:3: 9
3t/
2. Congressional leaders
Immediately following the delivery of Roosevelt's message
to Congress on M a y £4, 1937, Senator Black and Representative

1
Connery introduced the Administration's bill. Two weeks of
joint hearings, beginning w i t h a presentation of the constitu
tional argument by Assistant Attorney-General Jackson, were
held in June; and b y the sixth of August, a bill -- thoroughly-
revised in each instance -- had b e e n reported to the Senate and

g
to the House and had b e e n passed b y the Senate. Both committee
reports incorporated the text of the President's message, but
neither report displayed much more concern about constitution
ality than Roosevelt had displayed. "'The bill has b e e n drafted,"
said the House report, "in accordance w i t h the principles of
constitutional law, particularly those enunciated i n the recent
minimum wage and Labor Relations Board decisions of the Supreme
Court of the united S t a t e s . N o other reference to the Court's
decisions was made i n the House report and none in the Senate
report although in each report there were a few general asser
tions w h i c h had constitutional significance.^ Nor was there any
1 S. £475 and H.R. 7200, CR 75:1: 4954, 4998. The bills were
identical except for some minor differences due p artly to over
sight. See Joint Hearings before the Committee on Education and
Labor, United States S e n a t e , and the Committee on Labor, House
of R e p r e s e n t a t i v e s , on S. £475 and H.R. 7 £ Q 0 . 75th Cong., 1st
Sess., 3 pts., 1222 pp., June 2-22, 1937, p. 44.
2 The reports are cited above. ® H. Rept. 1 4 5 2 . p. 9.
4 One paragraph of the Senate report was devoted to the argu

ment that the bill did not delegate legislative power. The report
went on to say in a few? sentences that the bill applied to acti
vities "only . . . insofar as they utilize the channels of inter
state commerce, or seriously and substantially burden or harass
such commerce." S. Rept. 8 6 4 . p. 5. Similar assertions were
among twenty numbered statements i n the House report. H. Rept.
1452, pp. 9-10.
suggestion that the Committees entertained constitutional doubts
or doubts about approval by the Court. "... t h e wisdom of a
cautious legislative approach" was pointed out, and the bil] was
described as "modest and conservative But these phrases, which
typified the care with which the reports had be e n w r i t t e n -- care
w h i c h w a s more obvious t h a n that apparent in the reports on earlier
Black-Connery bills — were concerned with the substance of the
bill rather than w i t h its constitutional basis.
A recapitulation, at least, of the constitutional argument
for the bill might h a v e been expected from Senator Black w h e n he
opened debate i n the Senate. However, the opening hours of de
bate, apart from some introductory remarks b y Black shout the
constitutional scope of the bill, w e r e concerned w i t h the bill's
coverage rather than with its constitutionality.^ Perhaps a sys
tematic presentation of the constitutional argument was superflu
ous at any time after the first day of the joint committee h e a r
ings w h e n Jackson, during almost six hours, presented the Admi
nistration's case and answered, questions. Thus, w h e n Mrs, Mary
Norton, who had become chairman of the Committee o n Labor follow
ing the death of Representative Connery, reached the question of
"the legality of this bill" in her opening statement on December
13, 1937, she referred the House to Jackson's statement. "I
could add nothing to that," she said, "and w o u l d recommend that
y o u read it."^
S. Rept. 8 8 4 , p. 4 and H. Rept. 1 4 5 £ , p. S.
2 See CR 75:1: 7648-7663.
3 CR 7 5 1 3 9 1 . Connery h a d died while the hearings were in

progress.
5. The legal spokesman
W h e n Assistant Attorney-General Robert J a c k s o n had completed
his detailed and comprehensive testimony before the joint c ommit
tees, Representative Connery asked, "Now, as to tie general c o n
stitutionality of this bill . . . . do you think it is airtight
as far as y o u can see?"
"I do," J a c k s o n replied; "I think so. With the single e x
ception of Hammer v. D a g e n h a r t . According to Jackson's con
stitutional argument, the bill was sufficiently airtight so that
its objectives could be reached even i f the Dagenhart case was
not overruled. Yet, as the President had. clearly indicated i n
his message, the A d m inistration was no longer content to let the
Dagenhart case go unchallenged. J a ckson amplified the Presi
dent's rationale for m oving directly in the face of the Court's
decision. This part of Jackson's testimony was secondary, h o w
ever, to the m a i n duty w h i c h he performed. Sines the bill rested
on more bases t h a n the hope that the Court would "remove this
blemish from our judicial history" (in Jackson's words), there
w as a necessity for explaining "all hopeful approaches to con
stitutionality, each complete in itself" which had been followed
i n the drafting of the bill.2
W i t h regard to Hammer v. Dagenhart, J a ckson spoke as a
lawyer, but that circumstance produced no restraint in his con-
1 Joint Hearings . . . on S . £475 and H.R. 7800, 75th Cong.,

1st Sess., p. 41.
2 For the quotations, see i b i d .. pp. 5, 2.
3S¥
demnation of the decision."'' Where Roosevelt had declared that
Justice Holmes did not represent a minority of the American
people, Jackson said of the Dagenhart dissenters that they
"could not he regarded as a minority in prestige." "Legal
scholarship received the decision with indignation and derision
w h i c h time has not softened." Jackson's praise for Holmes'
p o sition was novel only i n its appeal to legal scholarship for
support. M 0r was 'there novelty in his restatement of the justi
f i cation for challenging a decision o f the Court. Jackson
claimed no more discretion for Congress than the Court claimed
for itself. The conditions justifying what Chief Justice Hughes
called "'fresh c o n s i d e r a t i o n 1" of a constitutional question ha d
been most recently set forth in the Parrish case, said Jackson,
i n w h i ch the Court had "frankly and courageously" overruled the
Mini m u m Wage Case.^ Thus, the Count was following once again
Chief Justice Taney's dictum that the judicial authority of the
Court's opinion "'. . . should hereafter depend altogether u p o n
the force of the reasoning b y which it is s u p p o r t e d ! " Jackson
continued:
In the face of the willingness of the Supreme

Court to decline to let obsolete precedent limit the
exercise of its own reason, Congress m a y w i t h p r o
p riety decline to let such decisions stall legisla
tive reason. Had not the legislators persisted in
challenging the minimum-wage cases, their inaction
and acquiescence would have prevented the Court from
amending its doctrine. Nothing; but a challenge to
the child-labor decision will enable the Court, even
if it is so minded, to correct the old decision . .
. . If old decisions are not challenged by law makers,
judicial development is arrested and advancement of
legal science stops.
1 For discussion of the Dagenhart case, see ibid., pp. 5-6.
2 See above p . J 6 6 .
Hence, I have no hesitation in urging that the time
has come when the child labor decision should be chal
lenged and reargued, we may reasonably entertain the
hope that Hammer v. Dagenhart will be laid to tardy and
unmourned repose beside the lifeless remains of Adkins
y. Children1s Hospital.
Both the legislator's reason and the hope that the Court would
agree with that reason were grounds for challenging the Dagen
hart case. Jackson did not indicate, however, just when the
time had arrived for making the challenge or just what connection
there was between reason and hope.’*'
Hie Administration's bold, challenge of the Dagenhart deci
sion was not so bold that it stood alone. Or, perhaps it would
be more accurate to say, the Administration was interested mainly
in reaching its legislative objective rather than in rectifying
constitutional law. Jackson spoke in "a realistic way, on the
assumption that these committees are interested in finding a way

2
. . . rather than in regretful excuses why nothing can be done."
Thus, the bill made use of "available weapons to fortify itself
against the constitutional attack which labor .end commerce legis
lation alv/ays faces . . . ." In a single bill there had been

consolidated six "distinct constitutional theories" of the com
merce power. All except the first, which was the theory of the
1916 child-labor law, were "backed by long established precedents"
and by recent precedents, particularly the Labor Board Cases.
The latter Cases, said Jackson, "plainly receded from decisions
For Jackson's opinion of the standing of the Dagenhart pre

cedent at the time of the Wagner Act decision, see aoove r ,J 67
fn.J.
C ^bid., p. £.
386
such as Carter v. Carter Coal Co. . . <, which had seemed to
cramp the interstate commerce power into its lowest visible d i
mension."-^ The bill was said to exercise the power of Congress
to regulate competition in interstate commerce, t o eliminate
conditions w h i c h lead to labor disputes, to eliminate conditions
w h i c h affect the movement or prices of goods, to regulate conduct
intended to divert the movement of goods, sno also, it was said,
embodied the theory of the convict-made goods legislation. The
bill w as complicated, J a ckson admitted.
. . . its complication is due to the effort to

get into one bill all of the avenues b y which
the bill can. be held constitutional, so that if
one or more of these precedents w h i c h we think
should, be applied to this act are held not to
apply to it, it won't be n e c e s s a r y to wait 3 or
4*years more and t h e n draw another section. This
act combines everything, and is an effort to take
advantage of whatever theories m a y prevail on the
Court at the time that the case is heard.^
President Roosevelt i n his m e s s a g e to Congress i n behalf
of the Administration's bill had deplored Hammer v. Dagenhart
because it had driven "into impractical distinctions and sub-
terfuges" all attempts to assert the commerce power. One could
see this consequence in the convict-made goods approach. That
approach was "open to grave administrative diffic u l t y , " J ackson
said. It could be ignored if the Court overruled the Dagenhart
case and permitted "direct, simple, and effective regulation
inst e ad of reaching the same result b y going round R o b i n Hood's
barn." Jackson continued:
For the preceding quotations and the discussion of the com

merce power as invoked i n the bill, see i b i d ., pp. £-5. With
regard to the Labor Board Cases, see ibid., pp. 3, 6, 7, 42. For
a m e m ora n d u m analyzing the bill i n detail, see i b i d ., pp. 54-62.
2 Ibid_. , p. 54. o see above p , J ? P .
But there is a lawyerly preference for a difficult
w a y of doing a simple thing, and the Kentucky whip
method m a y commend itself to the Court w h e n direct
regulation does not. If so, this hill is designed
to get the benefit of such approval.■*-
The inclusion of child-labor provisions was another feature
of the bill which was due in part to the Administration's con
cern w i t h "lawyerly preference." After disavowing the function
of advising on policy with regard to the question of whether or
not child-labor provisions should be separate legislation,
J a c k s o n suggested that the conjunction of child-labor standards
w i t h general labor standards (since the latter affected inter
state commerce obviously) might produce a n e w attitude in the
Court toward child labor. The Court might not be willing to
overrule the Dagenhart case, but a ground would be afforded for
"distinction, a thing which lawyers are fond of."^
Wo member of the joint committee offered a- serious challenge
to Jackson's constitutional argument. Tire time for fundamental
disagreement as to the power of Congress over labor standards
appeared to be at an end. At any rate, the questions raised
were directed m a i n l y at the administrative features of the bill,
the m e a ning of its provisions, and the extent of its coverage.6
Questions of coverage, said Jackson, posed "a problem that is
inherent i n interstate commerce regulation"; specific questions
Ibid., p. 8.
^ Ibid., pp. 7-8, 15. See Black's remarks, i b i d . , p. 889.
3 I b i d ., pp. 15-54, 68-89.
would have to be decided finally by the courts i n m a n y cases.'1'
Care h ad been taken, J a ckson had saic earlier, to make the bill
"a good faith regulation of interstate commerce and nothing

p
more.” If Congress really wanted labor standards legislation,
the Administration was saying, it could share this good faith
and proceed w i t h the consideration of policy.^
1 I b i d ., p. 43. c I b i d ., p. 7.
3 Two other constitutional questions were discussed by Jackson

but only briefly — cue process and delegation of power. For
Jackson, who was concerned with the problem of striking a bal
ance between reasonable standards and adequate administrative
discretion, the two questions were essentially questions of
policy. Ibid.., pp. 8-10. Thus, when Representative Ramspeck
of Georgia asked vrhether there would not be danger of the law
being held unconstitutional if standards were not flexible,
J a c k s o n replied that there would be such danger to the law_". . .
and danger," he added, "of its doing a great injustice." Ibid.,
p. £7. But flexibility was not being purchased, at the price of
unconstitutional delegation. In reply to questions from Senator
Holt ( D , W. Va.), Jackson was emphatic in stating that the act
was "distinctly not an N.R.A." I p i d ., pp. £5~£6. For a m e m o
randum on delegation of power, see ibid., pp. 10-15.
38f
Bo Anticlimax in Congress
1« Unanimity in the Senate
The fair labor standards bill had a "tortuous journey"
from May 1957 to June 1938. ^ At no time was its constitution-

t
ality free from attack. But centralization as the object of
attack gave way to bureaucracy, and the ground of opposition

was shifted from the commerce power to due process, from defense
of state rights to defense of freedom from governmental controls.

Congress moved rapidly away from the Dagenhart precedent, and
its movement was comparable to that of the Court and the Presi
dent. President Roosevelt had spoken without equivocation when
he had declared in his message of May 24, 1937 that Congress

should take again the constitutional road which it had taken in
enacting the Child-Labor Act of 1916. The Court, in turn, was
to be unanimous when it agreed in the Darby case in 1941 that
the road was re-opened. Congress itself reached a point of
unanimity with regard to child labor and the Dagenhart precedent;
and for this reason, its actions and debates on the bill are
anticlimactic as far as the present inquiry is concerned. Con-
^ The quoted words are Rep. Healey’s (D, Mass.). CR 75:3:

9265.
For fuller descriptions of the political and legislative
history of the bill than is provided in these pages, see James
M. Burns, Congress on Trial, 1949, pp. 68-82; 0. R. Altman ,
"Second and Tnird Sessions of the Seventy-fifth Congress," 32
American Political Science Review 1099 at 1102-1108; Perkins,
op. cit., 257-266. For a detailed analysis of the changes in
the bill throughout its legislative history, see John S* Forsythe,
"Legislative History of the Fair Labor Standards Act," 6 Law and
Contemporary Problems 464-490 (Summer, 1939).
gress1 'unanimity was evident on July 31, 1937 when the Senate
accepted the Wheeler-Johnson child-labor amendment, which is
discussed below.
The shift in constitutional attack was also evident by
July 31, 1937, the date of the final roll call in the Senate.
During the five-day debate, leading Republican opponents con
centrated their attack on the "bureaucratic hazards" of the
bill.^ The bill was "unsound and un-nmarican," said. Bridges
of New Hampshire, " . . .primarily because of the vast oelega-

g
tion of power conferred upon one board." "Bureaucracy" should
never be extended "beyond absolute necessity," said Borah. "No,
no; we cannot shirk our- responsibility.1,0 Vandenberg was in
agreement. "I am unwilling to trust the bureaucracy," he said.^
Bridges, Borah, and Vandenberg did not e x p l i c i t l y declare the
bill to be unconstitutional on the grounds of excessive delega
tion, nor did they criticize the use of the commerce power.
Bridges and Borah, indeed, advocated statutory determination of
standaros.
-*• The quoted, words are Vandenberg's . CR 75:1: 7720.
2 CR 75:1: 7791. 3 GR 75:1: 7795-7796.
^ GR 75:1: 7721. Vandenberg did not discuss the commerce

power, but he did refer to his vote against the Wagner Act
". . . because I thought at the time it was unconstitutional."
He added, "I was mistaken." CR 75:1: 7726.
5 CR 75:1: 7790-7791; 7723, 7793-7795. Senator Maloney

(D, Conn.) spoke against bureaucracy when he spoke in behalf
of hour-standards set by statute, in accordance with the bill
he had introduced in February 1937. "I question the constitu
tionality of the delegation," he said-of the pending bill. "I
question very much the wisdom of the procedure." CR 75:1: 7808
and, generally, 7802-7809, 7939-7940. Maloney voted to recommit
the bill and also for final passage. The position of Tydings
(D, Md.) was similar. CR 75:1: 7870-7872.
37/
Similar arguments were made by a group of southern Demo
crats -- Connally of Texas, Harrison of Mississippi, George of
Georgia, Smith of South Carolina -- and by King of Utah. (An
extended attack b y Bailey of North Carolina on the bill's ap
plication of the commerce power was not to be heard until June
1938.) References to Supreme Court decisions were almost com
pletely lacking; and, in discussions concerned mainly with b u
reaucracy, there was little reference to "the rights of sovereign
States" (spoken of main l y by King of Utah and by Austin, R e p u
blican o f Vermont, rather than by the southerners)."'’ The bitter
ness that some southern senators felt toward (in the words of
Harrison) "persons who have an antipathy against m y section,
w h o have an idea that our w o men wear no shoes," found expression
and was linked w i t h distaste of bureaucracy. Harrison, who
spoke favorably o f statutory hour-stancarcs, complained: "I
k n o w if the measure is passed that madam," a reference to Miss
Frances Perkins, "is going to have a good deal of say in its

2 '
admi n istration."
Only Austin of Vermont, among the Republicans, and Byrnes
of South Carolina, among the Democrats, spoke at any length on
the commerce clause. Byrnes, who had been one of the leading
opponents of the 1 916 Child-Labor Act, remarked, that he had
". . . voted for every labor act I can recall having been pre-
The words quoted are King's, CR 75:1: 79£5. See below

for Austin.
p
CR 75:1: 7878. Harrison's remarks were restrained in com
parison w i t h those of "Cotton Ed" Smith of South Carolina.
"Antilynching, two-thirds rule, anc, last of all, this uncon
scionable -- I shall not use the proper adjective to designate
i n m y opinion this bill]" CR 75:1: 7882.
sented to the Congress" hut could not now support a bill that
would cover "every local transaction, purely intrastate."
Byrnes did not m e n t i o n child labor. He confined h i mself to a
criticism of the "plainly unconstitutional" section of the bill
w h i c h over-extended the Shreveport doctrine -- the doctrine that
Congress could regulate intrastate activities w h i c h affected
interstate activities — and based his criticism on the d is
tinction b e tween direct and indirect effects which had been
drawn i n the Schechter case and had been followed, he said, in
the Labor Board C a s e s . S e n a t o r Austin, without citing any
Supreme Count cases, repeated the essentials of the constitu
tional argument w h i c h he had made against the Black bill i n 1935
(see above p.261) anc t h e r e b y made the widest constitutional

2
attack that was mace on the pending bill. Austin's objections
included b ureaucracy and also the evil w h i c h was no longer re
ceiving mu c h attention from most of his colleagues — the use
of the commerce power to regulate production.
No one of the opponents was explicit in criticizing the
constitutionality of the child-labor provisions of the bill.
Were senators who voted against, the bill also opposed to a Con-
1 In the Labor Board Cases, said Byrnes, although the Court

. advanced considerably beyond its own position in the
earlier cases dealing w i t h manufacture, mining, and farming,"
the Court held that labor troubles had. a "direct" effect on -
interstate commerce. In the Schechter case, however, wages and
hours had been declared "indirect" in their effect,. For
Byrnes' comments and a l e n g t h y memorandum, see CR 75:1: 7942-
7944.
£ CR 75:1: 7778-7783.
gressional challenge of the Dagenhart case? Opponents of the
bill had an opportunity to go on record against such a challenge
when the Wheeler-Johnson child-labor bill was offered as a sub
stitute for the child-labor provisiors of the Administration's
bill.^ The latter bill had been changed by the Senate's Com
mittee on Education and Labor to exclude the convict-made goods
formula, a formula which was one of the two bases of the Wheeler-
Johnson amendment. Theother basis was the prohibit!on-of-ship
ment formula; thus, the amendment "squarely challenged." Hammer

p
v. Dagenhart, said Senator Johnson on the floor. The amendment
was adopted by a vote of 57 to 28.^ The opposition to the amend
ment happened to oe identical in size with the opposition on the
final roll call — 56 to 28 -- but was significantly different
in composition. Every senator who voted against final passage
of the bill -- including Connally, Harrison, George, Smith,
Byrnes, King, and Bailey among the Democrats and. Bridges, Borah,
Vandenberg, and Austin among the Republicans -- voted Yea when
the roll was called on the Wheeler-Johnson amendment and, presum
ably, "squarely challenged" Hammer v. Dagenhart.
. The text of the Wheeler-Johnson amendment is in CR 75:1:

7949-7950.
2 CR 75:1: 7666.
° CR 75:1: 7950-7951. For the final roll call, see CR 75:1:

7957.
2. How bold was the Senate?
Action that would "boldly challenge the wisdom of the
child-labor decision" had been advocated early in May 1937
by former Congressman Edward Keating, co-sponsor of the 1916 Child

2.
Labor Law. Keating supported the Wheeler-Johnson bill, a bill
that "squarely challenged" the decision, according to Senator
Johnson. In the prison-goods cases, said Johnson, the Court
had "in effect, overruled the Child labor case." In the future,
2
he predicted, the Court would overrule the case explicitly0
The Senate's Committee on Interstate Commerce, however,
pointed out in June (while the joint hearings on the fair labor
standards bill were in progress) that in the Kentucky Whip

opinion of January 1937 the Court had "distinguished it the
Dagenhart case from the case at bar." The Committee approved

the Wheeler-Johnson bill, nevertheless, and said in its report,
which made no mention of judicial developments since January:
"Thus, in the judgment of the Committee . . . much hope could
not be practically entertained that the Supreme Court would

4
overrule the Hammer v. Dagenhart case at this time.”
Hearings . . . on S. 592 . . . , 75th Cong., 1st Sess., p. 170

Keating was the first witness to appear before the Senate’s
Interstate Commerce Committee on May 12, 1937, about two weeks
before the President’s message. Ibid., pp. 8-19. In reminiscing,
Keating reflected on what might have been if Wrilson had not
regarded Franklin K. Lane as too valuable in the post of Secretary
of the Interior to be nominated to the Supreme Court instead of
McReynolds. Lane had insisted, said Keating, that the 1916
child-labor law was "clearly constitutional0" Ibid., p„ 14.
2 CR 75:1: 7666, 7668-7669.
^ Senate Report No. 726, 75th Cong., 1st Sess., June 14, 1937
(pp. 1-7), p„ 3.
4 Loc. cit. This conclusion and the distinction in the Kentucky
Whip opinion had been stressed by Senator Sherman Minton (D,Ind.)
Hearings . . . on S. 592 0 . . , p> 13#
J9S-
There was, indeed, a defeatist spirit about the boldness

of the Senate’s Committee on Interstate Commerce. Its report
analyzed "the State-aid and labelling approach” and the
approach of the 1916 Act and concluded, "Because section 9 of
the bill . . . expressly provides that in the bill the different
approaches are severable, the committee recommend that both
approaches be utilized . 1 The practicality of this
attitude was emphasized by Senator Wheeler, who was "perfectly
willing” to challenge the Dagenhart case but could not escape
the fact that "as a practical matter” Congress was confronted
2
by it, Wheeler had introduced an earlier child-labor bill
based solely upon the prison-made goods formula. During the
hearings of the Senate's Committee on Interstate Commerce,
early in May 1937, Wheeler explained his reason for introducing
his earlier bill and for collaborating with Johnson.
In view of the decision in the prison-made goods

case, and in view of other decisions sic , it
is my feeling that there is not very much hope of
the Supreme Court reversing itself in this matter
the Dagenhart case . That is the reason I intro
duced the bill as I did. Consequently, when
Senator Johnson introduced his bill using the
approach of the 1916 law, I suggested to him the,,
advisability of putting both ideas into a bill,
• o o © * o . * c # . o # . . o #
That was with the thought that if the Supreme Court

should follow its former decision . . . the Court
would on the other hand have to hold, following their
decision on convict labor-made goods, that the portion
of the bill employing the Ashurst-Sumners principle
^ S. Rept. No. 726, p. 4.

2
Hearings . . . on S. 59S . . . , pp. 36, 52.
3
Hearings 0 » . on S, 592 . . . , p0 13,
was constitutional. There is the possibility, of
course, that they might hold both of them to be
unconstitutional. But certainly it seemed to me
that if we are going to pass legislation we ought
to incorporate in it the principles of both bills,
so that if one falls we are bound to get the other.
Wheeler's strategy of caution extended to the appearance that

new child-labor legislation would present. It should not be
2
"practically . . . identical" with the 1916 legislation.
Nor should new legislation contain an "unwarranted delegation
of power to the Children's Bureau", which was particularly
3
distrusted by Wheeler. This argument and the argument for
utilizing two approaches may have appealed to the conservatives
who opposed the bill as a whole. In the Senate, aside from
speeches by Wheeler and Johnson, there was little discussion
of the amendment. Perhaps it was enough that the amendment
enabled the opponents of a general bill to go on record in
^ Ibid., p. 12„
^ Wheeler was referring to a bill introduced by Barkley.
Ibid., p. 360 Because the pending provisions were nearly
identical with the 1916 law, they were "flying straight in
the face of" the Dagenhart case, said Wheeler. CR 75:1: 7667.
The part of the Wheeler-Johnson amendment which was "in
substance", said Wheeler, the same as the 1916 law had been
"amended . . . in some details so that we thought it would be
more acceptable to the Supreme Court of the United States."
CR 75:1: 7931. The provisions of the Barkley bill (practically
Identical with the 1916 law) for investigation and inspection
. would give the Court the best excuse for holding it
unconstitutional that I can conceive of," Wheeler said.
Hearings . . . on S. 592 . . . , 75th Congress, 1st Sess.,
p. 24.
3 CR 75:1: 7930. The whole bill, said Johnson,faced "a most
formidable constitutional hurdle" as a result of "the broad
extended delegation of power to a new bureau." CR 75:1: 7665.
Excessive discretionary power was particularly evident in the
child-labor provisions, said Wheeler. CR 75:1: 7930-7932.
The Children's Bureau was to be given some discretion in
defining "oppressive child labor." For this reason also, said
Wheeler, the pending provisions might be unconstitutional.
CR 75:1: 7667.
opposition to child labor. There may have existed even a
hope that separate child-labor legislation might forestall
more extensive regulation. No objection was made when,
while the labor standards bill was being held up in the House
Rules Committee in August 1937, the Senate adopted the V/heeler-
Johnson provisions a second time by passing the Wheeler-Johnson
1
bill itselfo
S. 2226, Aug. 19, 1937; CR 75:1: 9318-9320. Johnson, who

considered the child-labor provisions to be "a rider to the
very complex and deeply involved Black bill” had intended at
the beginning of the Senate debate on July 27, 1937 to move
that the provisions be stricken and to urge that a separate
child-labor bill be passed. "It is neither fair to the courts
nor to the States," he said, "to tie it up with . . . wages
and hours . . . " CR 75:1: 7663, 7665. See also CR 75:1: 7930„
5. Safety from/ln the Court
The child-labor provisions which had been superseded by
the Wheeler-Johnson amendment, provisions which virtually
re-enacted the 1916 Child-Labor Law, were restored by the House
Committee on Labor and were accepted by the Senate’s conferees
when the fair labor standards bill finally reached the confer
ence committee, ’’The conference committee felt,’’ said Senator

Thomas of Utah to the Senate on June 14, 1958, ’’that in view
of the trend of decisions in the Supreme Court this was safe

procedure.” 1 After a lively debate in which the child-labor
provisions were not discussed, the Senate agreed to the

2
conference report without a roll call vote.
During the history of the bill, there had been unanimity
in the House as well as in the Senate on the question ofusing

the commerce power to regulate child labor. Reference to the
Court as a potential hazard had not disappeared entirely from
Congressional talk, but the judicial hurdle appeared small in
comparison with the political hurdle which the bill had to
surmount.
On May 24, 1937, the day of the President’s message on labor
standards, victory in the battle for a favorable interpretation

of the Constitution appeared to be further secured when the Court,
in ruling on the Social Security Act of 1935, handed down another
1 CR 75:3: 9164. Thomas made no further explanation.
2 CR 75:3: 9162-9178.
m a j o r decision in support of national legislation. /ifter the
la b o r standards bill was passed, in the Senate, the attack on
the hill shifted to the House, where the opposition, composed
m a i n l y of southern Democrats and Republicans, was able through
its control of the Rules Committee to prevent consideration on
the floor. While the bill was being effectively held up i n the
Rules Committee, Senator B l a c k himself was nominatec to take the
place of Justice Van Devanter on the Count.'0 Congress was called
into special session in November, and the bill was brought to
the floor after £18 members had signed a petition discharging
the Rules Committee. But labor was not united, and the bill was
recommitted b y a vote of £16 to 198 (with many members voting
in the name of labor) after an A. F. of L. version ha d b e e n de-
feated and William Green had urged recommittal. Legislative
prospects were dark in J a n u a r y 1938, but constitutional prospects
became even brighter with the nomination of the New Deal's S o l i
c itor General, Stanley Reed, to replace Justice Sutherland and
to join Justice Bl a c k . 4 Early in May, a petition was necessary
once again to discharge the Rules Committee. By this time, how-
^ The three members of the Court who, i n the A.A.A. case, had
opposed the invocation of the Tenth Amendment to limit national
power were joined b y Roberts and Hughes i n upholding the exercise
of the taxing and spending powers i n the unemployment compensa
tion provisions of the Social Security Act. Steward Machine Co.
v . Davis, 301 TJ.S. 548. The old-age assistance tax was held
valid on the same day in Helvering v. Davis, 301 U.S. 619. Only
McReynolds and Butler dissented in the latter case.
2 N e w York T i m e s . Aug. 13, 1937, p. 1.
^ The roll call is i n CR 75:£: 1835.
4 N ew York T i m e s , Jan. 6, 1938, p. 1; Jan. 16, 1938, p. 1.
ever, all labor groups were generally satisfied; and, whereas
133 Democrats and 83 Republicans voted to recommit the bill
in December 1937, on final passage of the bill in the House
on May 24, 1938 only 56 Democrats and 41 Republicans voted in
opposition. ^
In spite of the revolution in the policy and personnel
of the Court, the Senate by adopting the Wheeler-Johnson
amendment had not demonstrated great confidence in July 1937
in favorable action by the Court. Yet even less confidence was
displayed by opponents of the bill as a whole. The remarks of
Senator Logan of Kentucky and of Austin during the Senate debate
were a notable indication of the change which had occurred
since the debate on the thirty-hour week bill in April 1933.
The extent of Logan’s reliance on the Court as the interpreter
1
of the Constitution has already been described. When Austin,
in July 1937, declared that "the only thing in the wide world
that has preserved us from destruction as a free government has
been the judiciary department," Logan said that he understood
from Austin’s remarks that Austin was "looking now for safety
to the Supreme Court . . . and he evidently expects the Supreme
Court to say that Congress cannot regulate minimum wages and
maximum hours." In his reply, Austin spoke of the judicial
barricade in the past tense and did not answer Logan’s question
directly.
Mr. President, I would never be so intemperate as

to take such a position. I am expressing my own
opinions and the opinions of no one else. I am
praising a great court for a good court. Time
^ 75:3: 7450. 2 See above pp.
after time it has stood as a barricade against crazy
waves of emotionalism and suggestions of revolution
and efforts to change and override the Constitution
without submitting the question to the people. It
has been the only sanctuary to which the laboring
man could resort in order to be saved from having
just wha| is proposed by this bill being brought about
« « « •
As opponents lost what confidence they may have had that

the Court would rule adversely, the Court commanded less
attention; and limitation of the bill's coverage by amendment
gained added importance. Much of the history of the bill was
a history of efforts to secure exemptions. The area of coverage
which remained, after exemptions were made, included persons
"engaged in commerce or in the production of goods for commerce."
How many persons would finally be covered was "something which
the United States Supreme Court will be called upon to decide,"
said Senator Wagner. 2 Senator Bailey of Nor-th Carolina was
exceptional in criticizing the Congressional formula itself
because it did " . . . describe and seem to include as in
interstate commerce those who produce goods for sale in that
3
commerce
1 OR 75:1: 7782. 2 CR 75:5: 9173.

3 CR 75:3: 9168.
4. June 14, 1958
Senator Bailey spoke on June 14, 1938, immediately preceding
the Senators approval of the conference report. He did not wish,
he said, to see legislation enacted . . and presented to the
Supreme Court of the United States without one expression from

the floor of the Senate to show that at least one Senator believes
1
that the proposed legislation is unconstitutional . . • .”
Bailey’s remarks on the bill’s application of the commerce power
provoked nearly a dozen senators to take part in a debate that
filled nearly a dozen pages of the Congressional Record. Senator

Borah, in particular, responded to the title of ’’constitutional
lawyer” and spoke at length, repeating his 1916 argument about

the police power in interstate commerce and ignoring the
production-for-commerce formula and what Senator Wagner spoke
of as the ”liberalization of the definition of interstate commerce”

2
provided by recent decisions of the Court. ”We have engaged in
a little debate and controversy," Bailey said toward the
3
conclusion, ’’and I have greatly enjoyed it.”
Bailey had stood almost alone on the floor of the Senate
and without assurance that the Court would stand with him. Some
moral support came from Carter Glass of Virginia, who remarked
that ” . . . the Court has been terrorized to render any sort of
1 CR 75:3: 9166.
2 The Bailey-Borah exchanges provide a notable example of the
extent to which two senators who disagreed about proper phrase
ology but were in no other substantial disagreement could debate
at length. For Borah, an activity was either in interstate com
merce or not in interstate commerce, and he fitted all hypothetical
situations into this formula. For Bailey, an activity was either
in interstate commerce or was production. Thus, Bailey attacked
the production-commerce-formula, which Borah ignored (except for
a reference by Borah, without specification, to "one phrase which
*02
decision that was wanted." ^ Bailey referred to "intimidation"

2
and "the duress of circumstances." Yet he accepted the
decision on the Wagner Act, which he distinguished on the
ground that labor strife was "an obstacle" to commerce whereas
a quarrel between individuals over wages and hours might cause

2
only "a little trouble." " . . . there has not been a court
since 1789, until the present hour," said Bailey, "that would
not have held it the proposed law to be unconstitutional."
Nobody knows about the Constitution now, because

we do not know the standards of the appointing power.
I am sorry. I do not want to say anything more about
it. That is one trouble with the country.
I will not say that the bill, if enacted into
law, will be held to be unconstitutional . . . . I
do not know what will happen in the future. When
the foundations begin to slip, at least the Senate
ought to stand up0 4
No one stood up in the House on Tune 14, 1938, as Bailey
stood in the Senate, to attack the billTs exercise of the

5
commerce power. Representative Mary Norton, speaking for
unanimous conferees, apparently felt no need to assert once
again that the bill affected only interstate commerce. A
member of her committee, however, took pains briefly to re-assert
seemed to me objectionable, but under the Jones-Laughlin decision

it was thought by the conferees it was justified" — CR 75:3:
9175). CR 75:3: 9166-9167, 9168-9171. 9172, 9175-9176.
5 CR 75:3: 9174.
1 CR 75:3: 9172. 2 CR 75:3: 9166.
3 CR 75:3: 9168. 4 CR 75:3: 9174.
3 For the brief House debate, seeCR 75:3: 9255-9267.
the hill’s limitation. Schneider, a Wisconsin Progressive,
said:
The measure as reported out by the conference

report applies to interstate business only. This is,
of course, very well known. It must be repeated,
however, to avoid any misunderstanding of the bill,
that it does not in any way, shape, or form, affect
intrastate or purely local or State business. It
covers only interstate commerce; that is, business
which is interstate in character. 1
Leaders of the opposition not only agreed with this conclusion
but also built upon it. At the beginning of the House debate
in December 1937, Iviartin Dies of Texas, a member of the Rules
Committee, had described the bill as one "to humbug the laboring
people" because "not more than a handful" would be benefited.
You have exempted all agricultural labor and you

have exempted many industries engaged in interstate
commerce from the operation of the bill. Of course,
the bill does not apply to those engaged in intrastate
commerce.
A similar argument was made on June 14, 1938 by a Republican,
Hartley of New Jersey, who had signed the conference report

three days before and since then had changed his mind. The
powerful farm bloc had forced the exemption of farm labor, he
said; but he was willing to stay in session to fight for "a
decent minimum wage law . . . for the benefit of the exploited

3
workers of America."
Although Hartley and his fellow opponents appeared to
agree that the commerce power was being exercised constitution
ally, they did not agree that the bill had avoided the pitfalls
1 CR 75:3: 9260. 2 CR 75:2: 1387-1388.
3 CR 75:3: 9257-9258.
i-OS"
of "bureaucracy#" Questions of administration had been the
subject of the sharpest disagreement throughout the history

1
of the bill, and rigid standards and administrative
discretion over flexible standards had been denounced as
unconstitutional on grounds of due process and excessive

2
delegation, respectively* The bill finally agreed upon in
conference was hailed as "a fair compromise" and was agreed to

5
in the House by a vote of 291 to 89 0 'The bill had been sent
to conference on May 24, 1938 by a similar majority or more than
3 to 1 (314-97), which included a majority of the Republicans

4
who voted (46-41)0
Thus, the House Labor Committee had spoken correctly in
April 1938 when it described labor standards legislation as a
non-partisan issue0 "Since 1932," the Committee had said,
"the two great political parties have advocated the principle
of minimum wages, maximum hours, and the abolition of child

labor0" The Committee had added, with grand understatement,
"There have, to be sure, been differences with respect to

5
the method of reaching this very desirable objective*" But
S. 2475 had undergone major changes in each of the

committees in charge — three separate versions were submitted
by the House Labor Committee at different times — and on the
floor of each house and in conference* See Forsythe, ojd cit* .
2
For example, Ramspeek (D, Ga.), who did not criticize the
bill’s use of the commerce power, maintained that the version
of the bill which was reported to the House on April 21, 1938
had no fact-finding procedure as required by the Parrish case
and Hughes’ dissent in the Tipaldo case; therefore it violated
due process and wTould be held invalid by the Court* The bill
also made "an unwise if not actually an illegal delegation" to
the Secretary of Labor, said Ramspeek, because that official
had indefinite standards to follow in determining what was in
interstate commerce. House Report No* 2182, 75th Cong., 3rd
Sess., April 21, 1938 (pp. 1-22), pp. 20-220
3
The words quoted are Ramspeek’s. CR 75:3: 9265.
4 CR 75:3: 7450. 5 H. Rept. No* 2182, 75th

Cong*, p. 6.
the objective was reached, and shortly before the final roll
call in the House, Representative Healey described himself
as "very happy" at the culmination of "half a century of
struggle." ^ H e a l e y ’s words were reminiscent of some words

2
spoken in 1914 during hearings on a child-labor b i l l 0 No
o pposition had been heard, and a witness had exulted in "this
h a p py day, this particularly happy day « . . when everybody is
u n animous." There had been a "wonderful growth and development
of our human feelings," he h a d said, " — only seven short years
since Albert Beveridge , . . was ridiculed" for proposing a
n a tional child-labor l a w e
s
1 CR 75:3: 9 2 6 5 0 See above p . ^ .
Notes in Conclusion
If the Supreme Court had not had the power of Judicial
review over acts of Congress, how might the legislative

behavior described in these pages have been different? "if"
questions lead to obvious pitfalls, and of course there is
oversimplification in the assumption of "other things being

equal*" But some answers to the preceding questions can be
stated with a fair degree of assurance, and there is some
basis for reasonable speculation.

The social loss or gain due to the Court should be noted
although it has not been inquired into here, if the first and
second child-labor laws had been upheld, how many children who
were to work long hours might not have worked? The defeat of
these laws meant, certainly, a loss in social benefit* The

immediate social benefit lost when the NRA codes came to an
end is moot. Yet there was some loss in political and
administrative experience when the Court forestalled a

resolution of the experimentation represented by NRA and helped
shift debate from policy to power. What of the energy of child-
labor reformers and other proponents of legislation? How much
time and effort might have been saved if Hammer v. Dagenhart,
for example, had gone the other way? How much frustration and
perhaps disillusionment might have been prevented?
To measure the Court's effect on Congress is also difficult,

but some conclusions may be drawn about the timing of legislation
That the first Child-Labor Act would have been enacted much
sooner than it was, but for the Court, seems improbable. Senator
Hog
Beveridge in 1906 was armed with confidence in judicial
approval but lacked even organizational support. When the

policy of a national child-labor lav/ came to command strong
support from a majority in Congress and the President, little
hesitation was shown in the passage of a bill, indeed, the

proponents of the 1916 law exhibited more confidence than the
opponents that the Court was on their side.
Equal if not greater confidence was expressed by the

proponents of a child-labor tax, enacted within nine months
after the Dagenhart case. This confidence may have hidden a
real apprehension. Nevertheless, there was less time spent
and interest shown in 1919 than in 1916 in the debate on

constitutionality. The tax was enacted in circumstances of
haste, one circumstance that seemed to discourage deliberation
and delay being the expectation that the Court again would
pass upon the law. Following the invalidation of the second
child-labor law, extraordinary majorities of Congress voted

for the Child-Labor Amendment, but as a result of delay in
ratification by the States there was delay in the achievement
of national child-labor standards.
During the nineteen-twenties, any proposal that Congress

establish labor standards was confronted by strong political
restraints, political apathy, and preference on the part of
organized labor for collective bargaining.'*' The depression

gave rise to new pressures for Congressional action, and by
1932 organized labor was prepared to support legislation for
shorter hours in order to spread the work. During the
^ What was the effect of the Court's decisions on Congress'

"next steps" in the decade following-the first World War? (Cf.
above P.?* ) If there had been no judicial barriers, more
bills relating to labor standards probably would have been
lame“duck session preceding Roosevelt’s inauguration, the
Black-Connery thirty-hour week bills, which directly challenged

the Dagenhart case, were reported favorably soon after they
were introduced. With little loss in momentum and before the
Administration had clarified its own labor program, the Black
bill was passed by a large majority of the Senate in April
1933• Legislative speed also marked the passage of the National
industrial Recovery Act within the following two months, m

neither case was there serious delay which could be attributed
to judicial restraints. The Dagenhart formula used in the
Black bill was, indeed, abandoned in favor of the N.i.R.A,

approach, but there is no convincing evidence that the shift
of constitutional ground was due mainly to the oourt.
Following the Schechter case, which held the N.i.R.A.

void, two years elapsed before Roosevelt announced that the
time had arrived for proceeding with the passage of a fair
labor standards bill. How important was fear of the Court as
a cause of this delay? it seems unlikely that the President

and his Congressional leaders would have moved much sooner
than they did even if they had expected that the Court would
uphold labor standards legislation, indeed, in 1935 and 1936,

there was no clearly-defined conflict between the Court and
proponents of such legislation. A bi-partisan majority seemed

to agree that some form of regulation of labor standards
within interstate commerce was permissible, but there was no
concentration of support for any particular form. Political
energy found outlets in passage of the Wagner Act and in other
legislation. (The prospects of the Child-Labor Amendment were
enacted* Would the problem of protecting competition from

prison-made goods have been met earlier than in 1929 and by
the setting of national standards in interstate commerce rather
than by delegation to the States? (Of. above p.3** )
n o
bright at this time, and proponents of child-labor standards
were in agreement that the best course of action was ratification
of the Amendment.1) Labor was busily engaged in organizing

and in establishing standards through collective bargaining.
With the 1956 political campaign approaching, the President
was reluctant to take the lead in making new policy. Significant

decisions were awaited from the Court during the first half of
1936, but their imminence seemed relatively unimportant as a
deterrent to presidential leadership.

Political restraints were no longer an important barrier
to new legislation following the New Deal's victory at the
polls. The threat of the Court, on the other hand, seemed

more obvious than at any previous time. That threat produced
delay when early in February 1937 President hoosevelt gave
first priority to his Court bill, although some Congressional

leaders were prepared to go ahead with a labor standards bill
based upon the commerce po?/er. Yet this delay does not seem
to have been due mainly to the particular fear that the Court
would veto a labor standards law. The President had reasons
of general strategy for urging his plan -- the opportunity was
present to use labor standards as political bait for acceptance

of the Court bill, which m turn could produce a Court
sympathetic to the New Deal program generally and incidentally
might influence the existing Court to reach favorable decisions

on important pending cases. Furthermore, as late as the spring
of 1937» there was no working agreement among the leaders of
1 When New York refused to ratify the Amendment in March

1937, only eight more States were needed, in 194-1, following
the decision upholding the Fair Labor Standards Act, the Chief
of the Children's Bureau stated that efforts to ratify the
Amendment m order to reach intrastate industries would continue.
M m Y o r k Times. Feb. 4-, 194-1, p. 11. But no States have
aJL^lf*ed- since March 1937. The Amendment is, presumably, still
9/1
labor and other interests, the Administration* and Congress
on the policy to be incorporated in a bill governing minimum

wages and maximum h o u r s E v e n after the Court had indicated
in March and April that it was not an unrelenting opponent,
the President continued to give priority to his Court bill;

and the start of the legislative campaign for labor standards
was delayed.
When the President urged Congress late m May 1937 to
move ahead, he appeared to be boldly proposing movement across

a judicial barrier. But in challenging the Dagenhart precedent,
he had not only the support of Justice Holmes' followers on
the Court but probably, at this time, the sympathy of a

majority of the judges. There were political obstacles to be
overcome before the Administration's bill was finally enacted*
but proponents appeared even more confident than m 1916 that

the Court was on their side.
Thus, from 1906 to 1938, the Court did not seriously
delay Congress. The Court’s decisions struck down existing

statutes and profoundly affected legislative debate, but once
a strong majority of Congress and the President were in
agreement on policy, the prospect of future decisions did not

deter the passage of new legislation. The objective which
Senator Beveridge had sought to reach through his bill of 1906

was reached not only once but three times -- in 1916, 1919,
and m 1938 — and a fourth time, indirectly, through the NRA
2
codes of 1933*
Did the expectation of new decisions on constitutionality

delay the securing of agreement on policy? That there was no
delay is suggested by the fact that early in 1937 two separate
groups within the Administration were working on constitu
tionality and policy respectively. See above p.^6?, fn.*> •
o
National action affecting child labor was also taken at
other times — m 1908 for the District of Columbia, m 1918
‘t/JL
« * * # «
The actions summarized above do not provide a clear

test of the effectiveness of judicial barriers, since in each
case proponents considered such barriers to be absent or
shadowy. Perhaps a clear test is evident in the lack of
movement on certain constitutional avenues, immediately
following the Lagenhart case, was Congress not deterred from

re-using the commerce power? Although some members — the
act's co-sponsor, Senator Owen, for example -- were ready to
challenge the authority of the Court and to re-enact the 1916

law, Congress was, indeed, "deterred." "Deterred" has been
- —> —
placed within quotation marks, however, because generally the

attitude toward the Court was one of deference, it seems
misleading to say that the Court in 1918 exerted a prior
restraint on further commerce-power action, since Congress had
given prior consent (specifically in 1916) to the Court's

determination of constitutionality.^"
Congress was again "deterred" after invalidation of the
child-labor tax, when the objective itself appeared to be out
of bounds, but Congress was acquiescent willingly. Progressives

during the nineteen-twenties were highly critical of the Court,
particularly for its child-labor decisions. But in 1922, a
large majority of Congress was ready — and some members were

eager — to accept judicial limitations on experiments that,
like the first and second child-labor acts, had been approved
and 1936 through conditions m government contracts, and in

1934 and 1937 in the sugar beet fields through conditional
exercise of the spending power.
Congressional acquiescence did not mean abdication to the

Court. The Dagenhart decision was interpreted to be a
barrier on one of the avenues to the objective, but the objective
itself was not abandoned.
+/3
without widespread enthusiasm and, if constitutional, might
open the way for regulation more radical than regulation of
labor by children.
The effectiveness of Judicial restraints when those
restraints have been defined by a nearly-unanimous voice may
perhaps be seen most clearly in the fact that serious advocacy

of the tax approach was not revived. Was Congress following
the principle of stare dec-tsis and finding it much more

applicable to the Child Labor Tax Case (decided by 3 to 1
without a dissenting opinion) than to the Dagenhart precedent
(opposed by four members of the Court and powerfully criticized
by Justice Holmes)? Or did Congress prefer the commerce power

because it had been used more frequently than the taxing power
or was more suitable for meeting evils of an interstate nature
or because the taxing power reached deeper into state affairs

than Congress wished to go? What is remarkable about the
record examined in these pages is the nearly total silence on
the subject of the tax approach, incidentally, it is to be

noted that the breadth of the Court’s interpretation of the
commerce clause in later decisions upholding extensive regulation

of matters once thought of as local has probably destroyed the
weight of the Child Labor Tax Case. Thus, Congress m reaching
its objective by way of the commerce power was sapping the
Tax Case barrier m the process of leveling the barrier of

Hammer v. Lagenhart.
* # # # #
Would individual members of Congress have acted differently

on final roll calls if the Court had not had the power of
Judicial review? Among those who voted Yea, there may have
*t m '
been some who would biave voted against the pending bill if
they had been unable to look to the Court to draw the line of
constitutionality. One vote for the 1916 child-labor bill

came from a senator who thought the bill was unconstitutional
and the Court would hold it void but voted for it to enable
the Court to settle the question "for all time." On the
other hand, there is no clear example of anyone voting Nay

who would probably have changed his vote. Many opponents
asserted that unconstitutionality was their m a m objection,
but few maintained that their opposition was solely on

constitutional grounds. Even if the professions of constitu
tional critics were taken at face value, opposition on
grounds of policy was usually so strong that constitutional

criticism was superfluous. At any rate, no one was found who
supported the policy of a pending bill and believed the bill

was constitutional but voted against it solely because he
expected a veto from the Court.
The conclusion that the Court alone has not deterred a

Congressional majority or individual members from acting m
favor of legislation may challenge a straw man since deterrence

has been held to apply, strictly speaking, only to situations
in which a legislator is confronted by a conflict between his

own constitutional belief and what he believes to be the
position of the Court. The assumption has been that one who
allows his constitutional conscience to be kept by the Court
cannot be deterred by the Court. However, Congressional
^ See above p. U S ,
2
Cf. above pp.AAS" and with regard to Logan.
acquiesence in the opinion of the Court may, indeed, be an
indication of the Court’s influence and indirect power as a
prior restraint, individual psychology has not been examined

here, but some comments will be made, first, about the Court's
influence on debate and, secondly, about "constitutional
morality
Extensive discussion of the constitutional question was,
on the whole, discouraged by the prospect of judicial review.

Beveridge in 1907 was prepared to argue his case at. length m
order to convince the Senate, not because he believed there

was a necessity to convince the Court, in 1914 and 1916, the
probability of judicial approval appeared to stimulate seme

1
opponents to speak. This probability also elicited speech
from some proponents for whom the 1916 law was "on the border
line of the power of Congress." Xet few proponents were

inclined to engage exhaustively in a debate that they believed
could not be definitive.
During consideration of the child-labor tax, after the

Court had split 5 to 4 in Hammer v. Dagenhart, the expectation
that there would soon be a second child-labor case was
particularly evident; and the possibility of judicial action

favorable to either side seemed to discourage extensive discussion
of constitutionality by both sides. Nor did proponents discuss
the "practical" ground on which one opponent 3tood, the
question of how far Congress should go "in using the taxing
power • • • for the purpose of social reforms." ^ Proponents
were mainly concerned with guessing whether the Court would
1 ^
The possibility of dj sapproval led at least one opponent
to speak, he said, to demonstrate that the Court had support.
See above pp./W -/¥£ •
2 See above p. l o l . 3 See above p J S 9 .
continue to close its eyes to the purposes of tax legislation.
During the New Deal, proponents of legislation tended,
in response to doubt about the position of the Court, to cut
discussion short and pass doubts "however reasonable” on to
the Court."*- The readiness of opponents to talk about constitu
tionality varied with circumstances to a greater extent than
did the readiness of proponents. Thus, constitutional
criticism, which was relatively restrained in 1933 and 193^*
increased in quantity and fervor in 1933 and 1936, when the
Court appeared to be a more formidable threat — or conservative
ally -- than had been expected. Judicial encouragement seems
to have been one reason for the first appearance, in 1 9 3 5 * of
a lengthy dissent to a committee report on the thirty-hour
week bill. When the threat seemed small during consideration
of the fair labor standards bill in 1937 and 1938, there was
less criticism of use of the commerce power than there had
been in 1933 or in 1916. These quantitative comparisons are
crude and not true of all individuals. Senator Bailey of
North Carolina, for example, argued without benefit of Judicial
precedent and was just as ready in June 1938 as m April 1933
to challenge the constitutionality of the pending bill.
The prospect of Judicial review seemed to discourage

2
wide participation as well as extensive discussion. Although
it was said on the floor of Congress that a particular
question could not be argued "as it would be argued before
the Supreme Court," ^ discussion appeared often to be addressed
See above p. 3o 7 .
p
Among members generally but with notable exceptions, there
was remarkably little impatience with talk about constitutionality«
Whether there was much interest is not easy to determine; the
Record does not always reveal how many seats were occupied
during constitutional debates.
3
See above p./c33 .
i-17
to judges rather than to legislators. Constitutionality was
commonly thought of as a "legal" problem. Members who were
not lawyers usually left constitutionality to the lawyers or

contented themselves with an assertion about constitutionality
or a phrase about the proper way to resolve doubt; members
who were themselves lawyers sometimes made a show of deferring
to "constitutional lawyers,"
* a * * *
Did the availability of Judicial decisions make for
increased clarity or confusion during discussion of constitu
tionality? To the writer, as one outsider, the answer is

confusion. Although there was comparatively little doubt
about the meaning of Hammer v. Dagenhart, for example, there

was sharp disagreement about the Lottery case and how wide it
had opened the door of the commerce power, the proper interpre
tation of the Schechter case, and whether the Kentucky Whip

case justified optimism or pessimism about the status of the
Dagenhart precedent,**” The opinions of legislators about
constitutionality were usually identified with selected opinions
of the Court, but the question whether approval could be
expected from the existing Court produced answers revealing
2
nearly every degree of certainty and doubt. What is remarkable
The Kentucky Whip case also complicated the legislative

Picture by stimulating the preparation of half-way measures
toward national labor standards.
2 At least one opponent who believed that a pending bill was

unconstitutional expressed "no doubt" that the existing Court
would uphold it. See above-.p, to 5 T , .On the other hand, there
was no proponent of a labor standards bill (in the public
record examined here) who expressed :qg doubt that the Court
would hold the bill void. This expectation may have been
implied m bills introduced m 1918 and I936 which included
penalties on Judges m the event that they ruled adversely. See
HIS
is that no matter how controversial some decisions were and

how uncertain the future position of the Court appeared to be,
a large number of members found — if they are to be believed —
brilliant clarity in the decisions.

in the light of Congressional acceptance of the Court's
predominance as interpreter of the Constitution and Congressional
familiarity with the Uni ted States Reports, it is not surprising

that the precedents to which reference was usually made were
Judicial rather than legislative.1 Underlying the predisposition
of legislators to talk like lawyers was a basic agreement that

constitutional questions were questions of legal power to be
settled, finally, by impartial judges. However, the more
intensely one supported or opposed a bill, the more one tended

to ignore judicial precedents (Beveridge was exceptional) and
to speak in ringing tones. Thus, for members who were especially
sensitive to the dangerous implications in the policy of a
bill, the issue was one of grand policy or constitutional

fundamentals. Leaders among proponents, on the other hand,
usually confined themselves to questions of constitutional
formulas, judicial approval, and the policy of the bill itself,

and often failed to engage in frank discussion of the
desirability of a proposed law as a precedent for wider

2
interpretation of Congressional power.
above pp. ISS" and •SJ'f for bills introduced by Owen and Monaghan.
Of course, the multitude of proposals affecting the
Constitution or the Court in 1935, 1936, and 1937 reflected the
expectation that certain bills, if passed, would be disapproved
by a majority of the Court.
Past legislative opinion about the meaning of the Constitution

was usually ignored. Citation of the House Judiciary Committee's
report of 1907 was exceptional.
2 Considerations of power and policy, of constitutionality
and wisdom, were often distinguished in theory by proponents
i n
Although blase remarks were often made about judges and
"constitutionality,11 the President and members of Congress did

not make light of the Constitution or of the Court "as an
institution." 1 The Court in this sense was not attacked,
and its power to hold Congressional laws void was rarely

2
challenged. Proposals for advisory opinions and for increasing
the Court*s membership threatened its prestige, but these and
more radical proposals came nowhere near commanding majority

support. Opposition to the Court was to be seen mainly in
the reaction to specific decisions rather than in doctrinaire
resentment of the Court’s power.

The highly controversial decision in Hammer v. Dagenhart,
for example, was widely unpopular and as a precedent was
considered by many to have been weak on the day it was decided,

yet Congress' lack of boldness in re-appraising and challenging
the Dagenhart case approached timidity. Justice Stone stated
in 1941 that the case was a departure from the principles
which had prevailed since the decision as well as earlier.
"Such vitality, as a precedent" as it had when decided, he
said, "has long since been exhausted." The precedent had

an extraordinary vitality for Congress and the President,
and opponents alike, but in practice these considerations

tended to merge.
Clarity does require that a bill's constitutionality be

distinguished from the merits and the immediate consequences
of the bill. But can questions of power and policy be separated
sharply when what is proposed is a new exercise of national
power in a federal system?
in the face of judicial barriers, enough constitutional

outlets for political energy were available to forestall
vigorous damning of the Court. When the Court itself appeared
as the barrier, the variety of methods available for dealing
with it was comparable in number with the variety of courses
available for circumventing its decisions.
2
See above especially pp. f S 7 ~ / S 8 , , and 3 S f , fn./ ,
■z
See above p.
H-A.0
however. No full-scale attack was made upon Hammer v*
Dagenhart until Roosevelt's message late in May 1937» at a
time when it would seem that its vitality was fully exhausted.
The early Congressional reports on the thirty-hour bill
skirted the question. The rationale for the Senate's passage
of the bill in April 1933 was not one of bold challenge,
although individuals were fully prepared to challenge the
Dagenhart case "squarely." The Administration's verbal attack
on Hammer v. Dagenhart in May and June 1937 was unqualified,
but the Administration's bill did not rest solely upon the
expectation that the decision would be overruled. As late as
July 1937, when the Senate appeared unanimously ready to cross
the Dagenhart barrier to reach the child-labor objective, a
majority in the Senate was unwilling to challenge the Court
without inclusion in the bill of an alternative basis of
regulation, in their approach to stare dec^ s^ s . members of
Congress and the President sometimes seemed more conservative
than the Court.
* * * * *
Did the Court give aid and comfort to conservatives
mainly? (Did it, thus, indirectly promote sobriety?) The
Court did in 1935 and 1936 give new zeal to the opposition.
But proponents themselves could look to the Court as an ally
rather than antagonist. Opponents were not alone in displaying
confidence that the Court would hold a law void. Proponents
often displayed equal confidence (in enacting the child-labor
tax and during the early New Deal) or greater confidence ( m
1907, 1916, and after May 1937) that the Court would act
favorably* Legislators as well as judges could exercise
discretion and find support in the body of judicial precedent
or note changed conditions or signs of a Judicial trend. The
usefulness of a dissenting opinion like that of Holmes in the
Dagenhart case is hard to exaggerate. Even criticism of the

Court's mental operations was based upon the Court's self-
criticism and the opinions of the judges themselves.
Thus, the Court was useful to both sides. To opponents,

it was a symbol of limitation on legislative power. To
proponents, it served as a "whipping boy" for legislative
inaction. To opponents, "constitutionality" was a readily

accessible cloak for hypocrisy. To proponents, the Court was
an "ultimate" judge to whom doubts could be passed.
Whenever political pressures were sufficiently strong,
a majority did pass any doubts it had on to the Court. Was
this action "constitutionally moral"? There was basic agreement
that legislators had an obligation to make Judgments about

constitutionality and that the Court had the last word. As
a result, the distinction between doubt about one's own position
and doubt about the position of the Court was usually blurred.
For passing "doubts" on to the Court, proponents of legislation
were often accused by conservatives of violating their oath of
office and, since the doubts concerned popular legislation,
of being callous about the Court's prestige. Meanwhile,
proponents invariably acted in the name of the Constitution
and almost always acted with obeisance to "ultimate" decision

by the Court
On the question of the legislator's duty, as on constitu

tionality, both sides found light m the decisions. For
example, see above ^ » 3 f 0 , fn. / •
The controversy over proper definition of the legislator's
duty was a recurring and a sterile one, and the quest for a
particular formula to be followed m resolving doubt was
futile. Formulas varied according to one's bias toward the

Constitution (was the Constitution a symbol of negation or an
instrument of national power?) and the policy at issue, if
constitutional morality had reference to restraint in accordance

with constitutional limitations defined by oneself, proponents
acted with a high sense of morality (except, perhaps, for the
senator, noted earlier, who thought the 1916 child-labor bill

was constitutional but voted for it to enable the Court to
settle the question)o But if legislators were obligated to
refrain from action whenever there was doubt about what the
Court would say, there was from 1906 to 1938 much constitutional
immorality•
Many comments in the preceding pages are unfavorable to

judicial review, yet there is no justification for concluding
that if there had been no judicial review constitutional debate
would have been more searching, participation wider, and issueB

more clearly and frankly defined. Would there have been less
emotional rhetoric? Shorn of judicial precedents and phrases,
the opposition's argument would have had less substance and

"respectability", but it need not have displayed less
emotionalism* Talk about States' rights found support in the
body of judicial precedent but did not depend upon the

existence of judicial review, if the banner of States* rights
was inappropriate, it could be replaced by opposition to
bureaucracy, a word which symbolized an evil that was attacked

with much heat but without benefit of much judicial precedent.
Nor would opportunities for subterfuge have been lacking
whenever there was confusion among interest groups — for

example, labor interests during the history of the fair labor
standards bill — who favored a broad legislative objective
but disagreed on the details of policy.
The Court had a pervasive effect on the legislative

process — for good or bad — and perhaps was influential in
many subtle ways not suggested here. Some credit may be due
the Court for stimulating Congress to take care in legislative

drafting and to use formulas that drew lines between national
and state activity. Whether the Court tended to stabilize the

legislative Judgment and impart a glow of principle to debate
is a matter of opinion — the writer’s opinion is no. At any
rate, in setting the tone of legislative talk and as a prior

restraint on legislative action, the Court was not of crucial
importance, if the specter of constitutional immorality had
disappeared (that is, if the Court had lost its power as the
final Judge of constitutionality), there would have been a

radical change in the problem of defining constitutional
frontiers. But, in the light of the weight of political
restraints, there is no likelihood that Congress and the

President would have run riot. Nor is it likely, in the light
of the deep conservatism of attitudes toward constitutionalism,
that reckless and defiant talk about the Constitution would

have reared its head.
# # # # #

Karis, Thomas George - Congressional Behavior at Constitutional Frontiers From 1906, The Beveridge Child-Labor Bill, To 1938, The Fair Labor Standards Act

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Karis, Thomas George - Congressional Behavior at Constitutional Frontiers From 1906, The Beveridge Child-Labor Bill, To 1938, The Fair Labor Standards Act

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Thomas George Karis

From 1906, the Beveridge Child-Labor Bill,

by Thomas George Karis

Submitted in partial fulfillment

From 1906, the Beveridge Child-Labor Bill,

CHAPTER O N E : Abortive Proposals for a National Child-Labor Law

I. The Beveridge Bill — 1906-1907

A« Senator Beveridge and President Roosevelt 1

B. Preliminaries to the Beveridge debate 5

C. The Beveridge debate 19

1. How important was constitutionality? 19

D. The aftermath of the Beveridge debate 37

II. The Palmer-Owen Bill — 1915-1915

A. House hearings: near-unanimity as to policy 44

CHAPTER T W O : The First Child-Labor Law — 1916

The History of the Bill

CHAPTER THREE: Hammer v, Dagenhart and the Second Child-Labor Law

TV. From May 1957t ”the time has arrived”

1. Unanimity in the Senate 389

Notes in Conclusion . 407

I am deeply grateful to Professor Arthur W. Macmahon

In moving toward political objectives through the exercise

of national power, Congress and the President have at times

found themselves on doubtful constitutional ground or at a

constitutional frontier. These situations have given rise to

familiar questions. What action is constitutionally permissible?

What action will the Supreme Court uphold? What attitude is

proper in resolving the problem? These questions of substance,

serious to the actors in the legislative drama, are the subject

of this study in a broadly procedural sense. Within the

dimensions of a case study, these pages undertake to examine

the "mental operations" ^ of those who have faced these problems

and the various courses of action they have followed. What

assumptions underlie "constitutionality" and what are its uses

as a symbol? How important are "constitutional morality” and

the Supreme Court as deterrents on legislative action? The

inquiry is not, therefore, into the constitutionality of legis­

lation but into the process of legislating constitutionally, an

inquiry into Congress (and the President as chief legislator)

rather than the Court.

A recent chapter in legislative history provides the

framework of this study: the movement from 1906, the date of

the first bill for national regulation of child labor, to the

"Economic theory became a fascinating subject — the orthodox

of national labor standards is of incidental interest only.

Legislative movement toward this objective has been "selected for

examination because it is to be observed in the context of a

judicial development that moved full circle — from the Lottery

Case of 1903, 'which seemed to hold the door of the commerce

overruled Hammer v. Dagenhart — a chapter in constitutional

history that is today closed.

In the legislative action described in these pages, the

major political and judicial developments of the period from

Theodore Roosevelt to Franklin D. Roosevelt are reflected. The

movement of progressive political reform in the years before

World War I, aided somewhat uncertainly by a national-minded

Supreme Court, was marked by the introduction of the Beveridge

bill in 1906 and culminated with the passage of the first

advanced point in the movement for national reform legislation;

it marked also the furthest advance in the accomplishment by

Congress of police power purposes through the exercise of the

act void, stood as a barrier to national regulation of labor

inquiry is not, therefore, into the constitutionality of legis

sources of legislative history: presidential messages, Congress