Child Labor and the Constitution. By Raymond G. Fuller, New York; Thomas Y. Crowell Company. $2.50.
The majority of citizens generally trouble themselves so little about public affairs that they willingly leave all but the most important to be dealt with by a few.” The quotation is from Lord Bryce, chosen at random, almost, from a whole series of realistic comments on the operation of democratic government. In a chapter of his Modern Democracies, under the disconcerting title of “Oligarchies within Democracies” he is attempting to explain the apathy of the masses of men towards political questions. Why, he asks, does power in a democracy tend always to pass to the hands of the few? The answer is in the number and intensity of the interests of men which take precedence over their civic duties. Man is concerned first of all, says this thoughtful observer, with the necessitous business of making a living; his domestic concerns, his family and relatives and friends, come next in the hierachy of interests; with certain individuals and in certain countries religious beliefs and observances rank third, but contending always with these, and frequently establishing a mastery, is the attraction of personal pleasures and enjoyment. Such, at any rate, are the chief interests which Lord Bryce believes to be uppermost with the rank and file of men and it is only the residue of their time and energy left after the solicitude for these that we can normally expect for politics. For the usual time and circumstances this comparative rating of men’s interests is probably not far wrong but occasionally some political issue arises which causes, for the moment, at least, a readjustment in the scale, and a stirring of the latent forces of democracy. In the United States a proposal to amend the Federal Constitution is sometimes such an issue and the pending Child-Labor Amendment, while calling up no great political storm, has evoked, nevertheless, an uncommon degree of activity and discussion. Some of this alertness is due no doubt to the suspicion that our national genius for organization has created agencies which are playing havoc with representative assemblies as detached and unbiased mediums for the consideration of public questions. It is commonly known, for example, that there are established in Washington some fifty or more permanent organizations, representatives of business interests or of groups with some definite legislative program, whose sole purpose it is to obstruct or to promote legislation as the particular interests or idea may be affected. Will the continued success of these legislative agents in bringing formidable pressure to bear upon Congress embolden them to tamper with the sovereign power itself or shall we see henceforth a livelier interest in constitutional amendments which will subject them to the analysis and deliberation which they deserve?
The proposed Twentieth Amendment provides in section one that “The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” To this is appended the provisions of section two, namely, that, “The power of the several states is unimpaired by this article, except that the operation of state laws shall be suspended to the extent necessary to give effect to the legislation enacted by Congress.”
The amendment received last year the necessary approval of both Houses of Congress, but it has not been accorded, during the past winter, a corresponding endorsement by the legislatures of the various states. Already a sufficient number of states have voted adversely upon the Amendment to postpone immediate ratification but, under our constitutional practice, the states which act affirmatively on an amendment are not permitted to rescind their action while those which refuse ratification at a given time may subsequently reconsider the measure and, if so disposed, vote for its acceptance. Since the proposed Amendment carries no time limit for ratification, we are likely to see the contest for its adoption carried over a considerable period of time, its advocates centering their efforts in one state after another in the hope that ultimately the approval of the required number of states will be obtained.
Mr. Fuller’s book, which is now well into its second year, is a revealing study of the scope and conditions of child-labor in the United States. The writer is a social worker of vast and intimate experience with the problem of which he writes and its presentation could hardly be made with a more careful regard for fact, with more perception into the various elements of child-labor reform, or with more appreciation of the effective limits of legislative prohibitions, national or state. The volume is entitled “Child Labor and the Constitution” but its chief emphasis is on the general problem of child labor; its ramification, not generally appreciated, perhaps, into a great variety of occupational fields; the inadequacy of existing legislative standards; the complex problems of administration; and the inevitable connection between child-labor reform and the larger problems of child welfare, such as compulsory education and public health services. The strength of the book lies more in its treatment of topics of this order—so it seems to the present writer—than in its consideration of child labor and the Constitution and of the advisability of bringing to the problem some measure of national control. But apart from differences of opinion regarding the proper legislative organs for the regulation of child employment, it is valuable to have from the hands of an eminent and experienced social worker a comprehensive statement of the child-labor problem and of the remedial measures which workers in this field believe essential for its amelioration.
Much of the data presented by Mr. Fuller is taken from investigations conducted by agents of the Federal Children’s Bureau and those of the National Child Labor Committee. While child labor is not present in the old traditional and stereotyped sense, people are mistaken, says the writer, in the belief that it is practically over. And as these investigations clearly show, it is a problem which is not confined to any one section of the country. Summarizing the geographical distribution of child labor, the author asserts that “when all occupations are taken into account the proportion of children at work in the South is much larger than in any other section of the country; but when non-agricultural occupations alone are considered the proportion is considerably larger for New England and for the Middle Atlantic States, and slightly larger for the East North Central States—than for anyone of the three southern geographic divisions.” In the textile industry in the South, however, there are still several thousand children between fourteen and sixteen years of age working from nine to eleven hours per day. The problem of tenement house work which engages large number of children, many of whom are under fourteen years of age, in the industrial centers of the North is practically untouched, and the same is true of street work of one sort or another in which between two and three hundred thousand children from ten to sixteen years of age spend a considerable portion of their time.
The greater part of child-labor legislation thus far, says Mr. Fuller, has dealt with children under fourteen years of age in a certain group of occupations conspicuous for their employment of immature children under excessive labor conditions. But in reality the bulk of child labor lies and has always lain outside the limits of these occupations. A vast majority of the children found gainfully employed by the census are in agricultural occupations. Some eighty percent of these juvenile agricultural workers are engaged in what is termed “child labor on the home farm” and the remaining number are employed in certain highly industrialized forms of agriculture. Large numbers of these farm children, the author believes, are carrying burdens which properly belong to grown-ups, and conditions of excessive labor of children on the farm are intimately connected with farm tenancy and with the one crop system. Some of the industrialized forms of agriculture, according to these reports, are exploiting the labor of children between six and fourteen in a manner which rivals the era of unregulated factory employment. Conditions of this nature exist in the beet sugar industry of Michigan and Colorado; in the oyster and shrimp canning communities in the Gulf states; in the cotton and asparagus fields of California, and in canneries and truck farms in the Middle Atlantic states. To such forms of industrialized agriculture, the author believes that prohibitory legislation may appropriately be applied, but for child labor on the farm, the remedy lies mainly in the home, in working out an economic solution of such problems as farm tenancy and rural credits; in compulsory school attendance, but certainly not in prohibitory legislation. The most widespread effect of farm work on children, the National Child Labor Committee concludes, is its interference with education. Illiteracy is nearly four times as prevalent in rural as in urban communities and agricultural labor is a factor quite as responsible for this as is the inadequacy of school facilities.
Although the amount of child-labor in this country has diminished within the last two decades, the task of abolition, says Mr. Fuller, “is now a bigger and more difficult task than it ever was before, and embraces a larger number of children.” And the program of the future, he continues, is something more than the mere taking away of children from certain kinds of labor. “Not an unoccupied but a well occupied childhood is the aim of child-labor reform . . , and the big remaining tasks have to do with putting in the place of child labor the substitutes for child labor, particularly suitable schooling, suitable play, and suitable work.” The scope of this future program as it exists in the minds of social workers is indicated by a comprehensive set of minimum standards for children entering employment adopted by the Children’s Bureau conference of 1919. Some of the more important of these standards are following: A minimum age of sixteen for employment in any occupation, except that children between fourteen and sixteen may be employed in agriculture and domestic service during vacation periods; a minimum age of eighteen for employment in and about mines and quarries; compulsory school attendance for children between seven and sixteen years of age, and provision for occupational and continuation schools for children above sixteen who have not completed certain educational standards; compulsory physical examinations for all children entering employment and annual physical examinations thereafter until the age of eighteen; a minimum eight-hour day or forty-four-hour week for minors; full-time officers for the enforcement of school attendance laws, and factory inspectors for the enforcement of child-labor legislation; a central agency for the supervision of all juvenile employment and provision for issuing certificates to all children entering employment who are under eighteen years of age.
Such, then, in barest outline, are certain aspects of the present child-labor problem as seen by an experienced worker in this field and such are the measures which a representative consensus of social workers regards as essential to an effective program of reform. From Mr. Fuller’s book, as from other equally convincing sources, it is manifest that there yet exists in the United States a child-labor problem of large proportions; that legislation in many states has been fragmentary and incomplete, even when judged with deference to their peculiar conditions; and that complacency and contentment on the part of any state or section in the face of manifest abuses will inevitably incur outside resentment and possibly reform. On the other hand, it is equally clear that the child-labor problem is no simple one; that on the contrary, its ramifications go deep into the economic, family and social life of vast numbers of people. Even the most cursory examination of the measures advocated in this present-day program of reform show that many raise in a very fundamental manner the ever debatable problem of the proper scope of public interference—or aid—in the affairs of men. Granting these proposals the merit claimed for them, their working out cannot proceed independently of the sentiment and conditions of the communities concerned. “Child-labor reform,” says the author of this book, “is dependent not upon legislation, but upon public opinion. . . The distinctions between child labor and suitable children’s work are difficult enough to state theoretically, let alone trying to put them into legal provisions; they vary too, with individual cases, according to the particular child and the particular activity.”
Until recent years, the various states of the Union have been regarded as the proper medium through which this child-labor question, with all its implications and diversity of problems, was to be worked out. They each possess a plentitude of authority for carrying forward the program of reform and through them it is generally agreed that a very substantial measure of progress has been made. Two attempts on the part of Congress to share in the regulation of the problem have been declared by the Supreme Court to be an unwarranted extension of its authority under the Constitution, and the Twentieth Amendment now proposes to grant this power in explicit terms and unmistakable scope. Many advocates of the Amendment visualize the measure as extending to Congress merely a share in the control of the child-labor problem—the authority of the states not being appreciably diminished—and this is the impression which the rather artless phraseology of the second section of the Amendment apparently seeks to convey. The most elementary knowledge of constitutional law recognizes, however, that under the proposal the states would make a complete and unreserved delegation of power to Congress “to limit, regulate, and prohibit the labor of persons under eighteen years of age.” The extent to which Congress will exercise this power will rest in its own discretion, limited only by the Supreme Court, and the sphere of action left to the states will depend upon the degree to which Congress itself seeks to legislate. The concurrent jurisdiction provided for in the second section, therefore, is meaningless so far as assuredly reserving any power to the states. As a matter of legal authority, concurrent jurisdiction here means potential national supremacy.
If the Amendment is adopted, how far will Congress go in legislating on the problem and what phases of its control will it be content to leave to the various states? The answer to this question lies purely in the realm of speculation. The two previous acts of Congress obviously do not serve as a criterion by which to judge possible future action. “What is not sufficiently recognized,” says Mr. Fuller, “is that neither of the Federal enactments was adequate within even the narrow occupational field which it covered . . . the child-labor standards imposed by federal legislation were fewer and lower than those which competent and thoughtful opinion regards as adequate standards for state legislation.” With Congress as the repository of authority to control the problem, will it not soon find itself confronted with the question, “What is child labor?” and when the answer to this question is sought will it not inevitably be found in the conditions which have been so comprehensively and ably stated by Mr. Fuller? And when Congress goes further and asks what is the remedy, there will not be wanting those who will answer, likewise, in the terms of Mr. Fuller, that the remedy is in prohibitory legislation, yes, but, also, in “putting in the place of child labor the substitutes for child labor, particularly suitable schooling, suitable play, and suitable work.”
That Congress would have the power under the proposed Amendment not merely to prohibit child labor but could likewise enact a whole series of constructive measures to regulate the leisure of children thus enforced, is the opinion of very eminent constitutional authority. Certainly the terms prohibit, limit, and regulate, coupled with the implied power clause of the Constitution, as utilized by Congress in the past and as sustained by the Courts, goes far to confirm this view. Thus the proposed Amendment raises once more the ever recurring issue in American political institutions of centralization and local government. While the debate has produced much thoughtful consideration of the proper function of central and local authorities, it seems improbable that the states will part with their authority in the prodigal and unpredictable manner proposed by the pending Amendment.