Uphill All the Way: The Fortunes of Progressivism, 1919-1929
By Kevin C. Murphy, Copyright 2013. All Rights Reserved.

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Chapter Eleven:
New Deal Coming

Progressives and the
Origins of the New Deal

IV. For the Child,
Against the Court

I. A Taste of Things to Come.
II. The General Welfare.
III. The Sidewalks of Albany.
IV. For the Child, Against the Court.
V. The Rivers Give, The Rivers Take.

However much a silver lining in many regards, Al Smith's New York is also the state where a decisive chapter in yet another progressive frustration of the decade took place: It was the turning-point in the battle for a Child Labor Amendment. That fight illustrated once again how reformers, with women leading the way, were envisioning a new federal commitment to ensuring the welfare of its citizens. And it also epitomized the same sort of frustrations with the Supreme Court that would push President Franklin Roosevelt to suggest his ill-fated "court-packing" scheme a decade later. As Clarke Chambers notes: "Almost every legal and political argument of the great court fight in 1937 was anticipated back in 1923 and 1924."1

The trouble began in May of 1922 with the Supreme Court's 8-1 decision in the case of Bailey v. Drexel Furniture Company, which overturned the 1919 Child Labor Tax Law putting a heavy tax on goods created through child labor. In 1916, Congress had passed the Keating-Owen Act, which, relying on powers granted through the Commerce Clause, forbade the transportation of products created using child labor across state lines. The Supreme Court found Keating-Owen unconstitutional in 1918, under their 5-4 decision in Hammer v. Dagenhart, and so in 1919 a new act was passed that replaced the ban with a tax.2

Taking up the case of a North Carolina furniture company who had been penalized for hiring a boy younger than fourteen and who subsequently brought suit, Chief Justice Taft and the Court declared that Drexel Furniture Company had the right of it: Congress could pass taxes for excise purposes, but not to be used as a specific penalty. In this case, Taft wrote for the Court, the tax "provides a heavy exaction for a departure from a detailed and specified course of conduct in business." However laudable the desire to end child labor, "a court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed. Its prohibitory and regulatory effect and purpose are palpable," and thus, Taft argued, must be ruled unconstitutional. Not to do so "would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States."3

Progressives were dumbfounded. Writing in TNR, Edward S. Corwin argued that Taft was misapplying John Marshall's famous dictum from McCulloch v. Maryland -- that "the power to tax is the power to destroy" -- in a way that undermined the "sovereignty of the national government within the field of its granted powers." From now on, "any effort on the part of Congress to bring within its control matters heretofore falling to the states, raises the question of valid motive. The notion of the cooperation of the national government and the states in the furtherance of the general welfare…has apparently dropped out of view." In The Nation, Raymond Buell argued the Court, by "imposing restraints on the power of Congress to levy taxes," was entering novel territory. "In the light" of this decision, "it is not at all improbable that the court will nullify the Dyer anti-lynching bill, if enacted; and the Maternity and Smith-Towner educational laws, on the grounds that they infringe on State's rights."4

Now cut off on the legislative front twice by the Court, the anti-child labor advocates who constituted the National Child Labor Committee (NCLC) -- an organization founded in 1904 by such progressive stalwarts as Jane Addams, Florence Kelley, and Lillian Wald - began looking towards a constitutional fix. After the Drexel verdict, NCLC General Secretary Owen Lovejoy asked the Board whether they wanted to pursue an amendment strategy. While some members, such as former Children's Bureau Chief Julia Lathrop, thought that the current "popular distaste for governmental activity" would hamstring any attempt in that direction, the Board overall voted to proceed regardless.5

Incensed that the NCLC Board could be so divided -- it was a "shadow of its former self" and had "defaulted all leadership in this crisis," she told friends and former colleagues -- Florence Kelley began looking for new allies to take on the fight for a child labor amendment. This included enlisting the WJCC and her own organization, the NCL -- which rejected a potential amendment, 5-5. Felix Frankfurter also harbored doubts about the strategy. Concerned about "the fashioning of responsible citizenship," he told New Republic readers "[i]t is too easy to look to Washington and a centralized administration for the correction of all our national shortcomings" and thought it better to engage public opinion against the practice. Over at the American Federation of Labor, meanwhile, Samuel Gompers was sympathetic to doing something, but thought an amendment would be a heavy lift and preferred instead Robert La Follette's recent proposal for constraining the Court's powers, a variation of which would prove so much trouble for the Wisconsin Senator in the 1924 election. Nonetheless, in June 1922 Gompers formed, with Kelley and others, the "Permanent Conference for the Abolition of Child Labor" and insisted that, if Congress didn't act, it would support an amendment. When Gompers and other members of the Conference testified to that effect before the House Judiciary Committee, the Congressmen on hand shrugged and argued their hands were tied. "It is amazing and astounding that it should be necessary to ask Congress to protect childhood," Gompers told the press. Now "we have a fight on our hands, strange and mid-Victorian as that may seem."6

Florence Kelley, meanwhile, thought anything less than a constitutional amendment was a waste of time, and that the AFL was an "infelicitous banner bearer for children" regardless. ("We must certainly get disentangled from the leadership of Mr. Gompers," she complained to a friend. "It is worse than anything I had imagined. Whether the futility is caused by incompetence or chicanery the net result is the same, and is intolerable.") Compounding Kelley's irritation was the fact that progressives could not agree on the wording of the proposed amendment. Owen Lovejoy and the NCLC desired language granting "concurrent" powers to both states and the federal government, in order to encourage states to pass their own laws and avoid the constitutional controversies that had ensnared other reforms, while Kelley and others did not want to see the amendment watered down in any way. While anti-child-labor advocates fought amongst themselves, sometimes quite virulently, about these constitutional issues, 1923 faded to 1924, further dulling the prospects for the quick ratification of any amendment. While forty-two state legislatures were scheduled to meet in 1923, only fourteen would do so in 1924.7

In the meantime, everyone from Robert La Follette to Herbert Hoover to Henry Cabot Lodge had endorsed the measure. "Child labor and poverty are inevitably bound together," Children's Bureau Chief Grace Abbott had told wavering Congressmen, "and if you continue to use the labor of children as the treatment for the social disease of poverty, you will have both poverty and child labor to the end of time." Even President Harding came out for a child labor amendment, telling Congress in December 1922 that, since "the decision of the Supreme Court has put this problem outside the proper domain of Federal regulation," he recommended "the submission of such an amendment…We ought to amend to meet the demands of the people when sanctioned by deliberate public opinion."8

So when an amendment -- with Coolidge's tepid endorsement -- was at last introduced in Congress in April 1924, it passed within two months -- 297-69 in the House, 61-23 in the Senate -- particularly since it was an election year and the final burden of making it law would fall on the states. The final amendment consisted of two sections: First, that "Congress shall have power to limit, regulate and prohibit the labor of persons under 18 years of age" -- a victory for Florence Kelley, who had pressed hard for the eighteen year cutoff rather than sixteen years. And second, that "[t]he power of the several states is unimpaired by this article" except as "to the extent necessary to give effect to legislation enacted by Congress," a language to soothe constitutional concerns and make it clear the amendment should be a floor, not a ceiling, for restrictions on child labor. (Strict constitutionalists were not appeased, with Borah once again in opposition to the bill's centralizing tendencies.)9

With the amendment now being sent to the States, The Survey noted with a sigh, "the familiar bogeys…of states' rights, the prohibition analogy, the grasping bureaucrats of Washington, the sacred right of the 17-year-old farmer boy to pick blueberries on the hill, and all the rest - will no doubt troop from state capital to state capital to do their worst." And so it was. "They have taken our women away from us by constitutional amendment," one opponent proclaimed. "They have taken our liquor away from us, and now they want to take our children." The NCLC found itself fighting the argument, in Owen Lovejoy's words, that "no girl under eighteen would be able to wash dishes and no boy could crank up the family Ford." In The Survey, Felix Adler lamented "the Child Labor Panic" which seemingly took hold of the nation. "It is one of the terrible problems of democracy that great masses of the people are asked to decide questions on which they have not the facts," he argued. "There is wild talk about Moscow giving orders to the National Child Labor Committee."10

Organizations like the National Association of Manufacturers and the US Chamber of Commerce -- as well as, to rural reformers' dismay, the American Farm Bureau Federation and the Grange -- whipped up opposition to the amendment. So too did the nation's many "professional patriots," such as the Sentinels of the Republic. This amendment, "seeks to substitute national control, directed from Washington, for local and parental control, to bring about the nationalization of our children, and to make the child the ward of the Nation," warned the Sentinels. "It is a highly socialistic measure -- an assault against individual liberty," and to pass it would be "to fasten upon ourselves the shackles of that kind of Bureaucratic Autocracy which ruined Germany." The child labor question, another such group maintained, was "a Trojan horse concealing Bolshevists, Communists, Socialists, and all that traitorous and destructive brood." Jane Addams was told by one New York employer that the amendment would make of America a "vast kindergarten." In her memoirs of the decade, she later wrote of a talk in the course of that campaign to a group of professional men, most of them with a college background":
[They] asked me to state categorically the author of the Child Labor Amendment and the city in which it was written. To my reply that the bill had been drawn by a professor in the University of Pennsylvania, and that he had probably been in Philadelphia when he wrote it although he may have been in Washington in conference with the Child Labor Committee, they asked me whether I could make an affidavit to those statements, otherwise they would have to believe what they had been authoritatively told that the amendment had been written by Trotsky in Moscow. There was no discussion and the arguments of such a constitutional amendment could not be entered into, because all the time was taken talking about this preposterous statement which seemed to them so important.11
Another vociferous opponent of the amendment -- despite the long-stated support of Father John A. Ryan for national anti-child labor measures -- was the Catholic Church, who saw in it a stalking horse for the same federal encroachment that would result in a Department of Education. Along with all the other forces arrayed against the bill, the Church's opposition helped to make Massachusetts, normally fertile terrain for progressive legislation, the first bloodbath for the amendment. Sent to an "advisory referendum" by squeamish state representatives, the child labor bill lost by almost three to one - 250,000 for, 700,000 against.12

After Massachusetts, the amendment ran up a string of defeats in Georgia, North Carolina, Oklahoma, South Carolina, Texas, and Kansas, where William Allen White had argued "it was grotesque folly" to even attempt putting such a reform forward. "We are in a slough of reaction," White warned. "It is the height of folly to push humanitarian measures at this time and give their opponents the prestige of defeat." By the time the amendment reached the crucial state of New York in January 1925, it had passed in only three states -- Arkansas, Arizona, and California -- and lost in seven, and advocates for the legislation were tired and frustrated by the whirlwind of opposition, real and manufactured, they had encountered. "Is there any living Democrat in this state, beside the Governor and the State Department of Labor," Florence Kelley complained to Frances Perkins, "who is right on the Children's Amendment?"13

As it happened, Governor Smith -- a Catholic -- was also wavering. While declaring his own support for the amendment, Smith recommended it too go to a referendum. Kelley fumed that Governor Smith had "gone over to the enemy," but the damage was done. The State Assembly never even let it get as far as that, and without the reform bellwether of the Empire State behind the measure, the child labor amendment was effectively defeated. By the end of 1925, forty-two state legislatures had met and only one additional state -- the ever-reliable Wisconsin -- had ratified. By 1930, only six states had passed the measure. The NCLC, meanwhile, had effectively given up the fight in 1926, when Owen Lovejoy retired and was replaced by his more cautious assistant, Wiley Swift. "From now on," said Swift in 1927, "the movement will be more gradual and necessarily less spectacular." Florence Kelley was beside herself. "Why, why, did I ever help to start the National Child Labor Committee?" she lamented to Lillian Wald.14

It was not lost on Kelley or any of the other child labor advocates that an amendment was only necessary because the Supreme Court had struck down the Child Labor Tax Law in Bailey v. Drexel and the Keating-Owen Act in Hammer v. Dagenhart. For much of the Progressive Era, as perhaps best represented by the 1905 Lochner case, reformers had seen the Court protect the rights of corporations under the Fourteenth Amendment, while consistently striking down any attempts to rein them in. The 5-4 decision in U.S. v. Newberry, scaling back campaign finance reforms in 1921, was yet another troubling example. "[I]t is high time," Raymond Buell told Nation readers in 1922, "that the actual extent of its powers be reexamined." The Court's decision in Adkins vs. Children's Hospital the following year, which Felix Frankfurter later described as the "death knell" of social legislation, only reconfirmed to many progressives that it was time to take more drastic action.15

"The Supreme Court of the United States is not a hereditary body," wrote Buell. "It does not represent privilege. Nevertheless it exercises much the same power as the House of Lords, and it is just as likely to lose touch with public opinion because of the cloistered life in which it was sheltered, and because of the conservatism which constant contact with musty legal precedents inevitable gives." Getting rid of judicial review entirely, however, "would remove a desirable check on the domination of Congress by special interests, whether they be Agricultural blocs, American Legions, or Anti-Saloon Leagues" and "deprive the country of the services of the one branch of our Government where learning and intellect are conspicuous." The popular election of judges was troubling too, since "such a reform would drag the court into politics more than ever," as would subjecting judicial decisions to recall, as Theodore Roosevelt had once suggested. The most reasonable way forward, Buell concluded, "would be to require unanimity or at least a two-thirds majority before the court could set aside a law on the ground of unconstitutionality." Since Congress already had the power to alter the size and scope of the Court, this would not even require an amendment.16

Buell was not alone in calling for reform. The "general tendency of all the recent decisions of the superior and puissant Nine…toward shoving the man down and lifting the dollar up," in H.L. Mencken's words, was inescapable. In 1922, Samuel Gompers and the AFL officially endorsed a constitutional amendment -- soon put forward by Congressman James Frear of Wisconsin and later to be included in the La Follette-Wheeler platform of 1924 -- providing that a Supreme Court decision on constitutionality could be overridden by two-thirds of Congress. Father John A. Ryan, arguing that "a law shall not be nullified unless its unconstitutional character is beyond reasonable doubt," supported the idea of a seven-judge supermajority required to determine a bill unconstitutional. "The time has come in the United States," argued Governor George Hunt of Arizona after the Adkins decision, "for the people of this country to take back from the Supreme Court the unwarranted authority usurped by it in declaring acts of Congress unconstitutional." William Sweet, the Governor of Colorado, said he "would heartily approve an amendment to the constitution making it impossible for the Supreme Court to set aside an act of Congress."17

Even Senator Borah, who agreed with the Court on the child labor decision and who was so finely attuned to any threats to the constitutional order, thought it time, for the Court's own sake, to rein in the powers of the Judiciary. While he disagreed with the AFL-La Follette approach of a congressional veto, he thought requiring a seven-Judge supermajority was sufficiently within the bounds of the law and introduced legislation to that effect.. "Everyone must experience a feeling of deep regret," he said in November 1923, "when the Supreme Court of the United States announces a decision involving some great constitutional question wherein five judges hold on view and four take the opposite view." This bill "is not an attack upon the Supreme Court," Borah insisted. "Anything which would relieve the Supreme Court of the embarrassment, of the odium, of a five to four decision would be distinctly to the ultimate advantage of that institution." Borah's bill was warmly welcomed by Florence Kelley and the National Consumers League, who had urged him to take up the cause. "No one else speaks with such authority as yourself," Kelley wrote Borah, "on the need that seven Justices should concur in order to hold a law unconstitutional." Fiorello La Guardia, agreeing to introduce the Borah bill in the House, called it "one of the first steps the progressive group intends to make."18

The Borah bill never moved forward through Congress, and the decisive defeat of the La Follette-Wheeler ticket in 1924 closed the door on judicial reform for the time being. Nonetheless, the urge to reform the Court still burned in the hearts of many progressives. Deeming Adkins "chapter three of the Dred Scott decision" (with chapter two being Dagenhart and Drexel), Kelley told Julia Lathrop that she was "more than ever firmly convinced that we must have women in all federal courts; and Borah's 7-2 requirement; and an effective restriction upon the due process clause which no one has hitherto succeeded in framing." Kelley -- citing Roscoe Pound's 1921 volume The Spirit of the Common Law -- argued to another correspondent that the Court was too small, and that it "should be strengthened by the addition of several competent, learned women," including Judge Florence Allen of Ohio. As it was, "monopoly of making and unmaking, teaching, interpreting, applying, administering, and enforcing the law by either sex has been hitherto eminently unsuccessful." In The Survey, Kelley further developed this line of argument, telling its readers that the "monopoly of jurisprudence by men must, therefore, be replaced by just representation of women on the bench, at the bar, in the American Bar Association, and in the state associations, and by their admission to the law schools."19

While Kelley and other reformers advocated expanding the Court to as many as eighteen Justices, legal-minded progressives urged caution. Roscoe Pound himself thought "legislative revision of judicial action" was a dangerous precedent. (He did concede, however, that the discussion of reforms might help to facilitate "a better judicial frame of mind.") Felix Frankfurter also remained un-persuaded. "The 7 to 2 proposal will not come off," he told Kelley, "and at the rate at which the Sutherlands and the Butlers are being appointed to the Court, it wouldn't do any good if it did." And Zechariah Chafee reminded his fellow progressives that the Court was ostensibly the last bastion of civil liberties as well. Weakening the Court's ability to declare laws unconstitutional could have unfortunate unintended consequences if bills violating personal rights and liberties made it through the legislatures.20

There the matter lay for the remainder of the decade. But the question would come up again.

Continue to Chapter 11, Pt. 5: The Rivers Give, The Rivers Take.

Return to the Table of Contents.

1. Chambers, 75.
2. Hugh D. Hindman, Child Labor: An American History (New York: M.E. Sharpe, 2002), 65-73. Bailey v. Drexel Furniture Company - 259 U.S. 20 (1922).
3. Bailey v. Drexel Furniture Company - 259 U.S. 20 (1922). While the Drexel decision seemed to confirm progressives' worst fears about the appointment of William Howard Taft as Chief Justice, the decision was 8-1 and included Louis Brandeis and Oliver Wendell Holmes in the majority. The lone dissenter was John H. Clarke.
4. Edward Corwin, "The Child Labor Decision," The New Republic, July 12th, 1922, 177-179. Raymond Leslie Buell, "Reforming the Supreme Court," The Nation, June 14th, 1922 (Vol. 114, No. 2971), 714-716. In McCulloch v. Maryland, Marshall was arguing that the state of Maryland could not tax the Bank of the United States, so in arguing that that doctrine applied here, Corwin argued, Taft was completely reversing it. "Never was a quotation more entirely misapplied." Corwin.
5. Chambers, 33-34. "National Child Labor Committee (NCLC)," Harvard University Library Open Collections (http://ocp.hul.harvard.edu/ww/nclc.html)
6. Chambers, 33-34. Felix Frankfurter, "Child Labor and the Court," The New Republic, July 6th, 1922 (Vol. 31, No, 399), 248-250. "Organizes for Law to End Child Labor," The New York Times, June 2nd, 1922.
7. Chambers, 35-37.
8. Lemons, The Woman Citizen, 220. Chambers, 57. Raymond Garfield Fuller, Child Labor and the Constitution (New York: Thomas Crowell Company, 1923), 252.
9. Lemons, The Woman Citizen, 220. Raymond Garfield Fuller, Child Labor and the Constitution (New York: Thomas Crowell Company, 1923), 252. Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago, 1956), 106. "A 20th Amendment?" TIME, January 5th, 1925. Chambers, 37, 40. Ashby, 66. "Here you are, a Jeffersonian Democrat, the cardinal principle of which doctrine was the integrity of the states," Borah responded to one constituent demanding action on the amendment, "urging me, a Hamiltonian Republican, to support a constitutional amendment enabling the national government to deal with the children of the State. Strange times, these are. But I think I can encourage you to expect favorable action, as the women always get nowadays what they ask for." Borah to Eve Hunt Dockery, March 7th, 1924. WJB Box 150: Child Labor.
10. Chambers, 37-38. Brown, 57. Judith Sealander, The Failed Century of the Child: Governing America's Young in the Twentieth Century (New York: Cambridge University Press, 2003), 151. Felix Adler, "The Child Labor Panic," The Survey, February 15th, 1925 (Vol. 53, No. 10), 565-567.
11. Chambers, 37-38. White to Henry J. Allen, June 11, 1925. White, Selected Letters, 249. Lemons, The Woman Citizen, 220-221. Sentinels of the Republic to Borah. WJB Box 150: Child Labor. Addams, Second Twenty Years, 158-159.
12. Chambers, 40-41.
13. Ibid, 42-44. Kelley was asking Perkins in order to help sway the New York World to the cause. "Walter [Lippmann], I feel, is a lost soul on this subject and will definitely have to be re-educated from A to Z." Kelley to Frances Perkins, December 4th, 1924. Sklar, ed., 354-355.
14. Ibid, 42-44, 46. Lemons, The Woman Citizen, 146-147.
15. Raymond Leslie Buell, "Reforming the Supreme Court," 714-716. Chambers, 68-70.
16. Ibid.
17. Ashby, 31. "The Minimum Wage - What Next?", The Survey, May 15th, 1923, 215-222, 256-261. Zinn, La Guardia in Congress, 71.
18. Borah Press Release, November 8th, 1923. WJB Box 133: General Info. Florence Kelley to Borah. WJB Box 136: Invitiations - New York City. Ashby, 33.
19. Kelley to Julia Lathrop, April 21st, 1923. Sklar, ed. 312. Kelley to James Haight, May 19th, 1923. Sklar, ed. 313-314. Florence Kelley, "The Minimum Wage - What Next?", The Survey, May 15th, 1923, 222.
20. Chambers, 73-76.

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