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Published online by Cambridge University Press: 07 May 2013
Following the 1906 midterm elections, Indiana Senator Albert Beveridge was excited to return to Washington to introduce a bill that would prohibit child labor in the nation's factories, mines, and mills. He hoped the bill would curtail the unpopular practice and help rebrand his Republican Party as the nation's progressive party. The Party's old guard, however, proved uncooperative. Recognizing the unpopularity of child labor, they fought the bill on constitutional grounds and challenged Beveridge with a parade of horribles. If Congress could constitutionally regulate child labor, they asked, could it not also regulate the hours or wages of adults? Could it not prevent a man from joining a labor union? Or require it? One would have expected Beveridge—who opposed such regulations—to blunt that criticism with some legal distinction. Instead, he embraced it. Would Beveridge go so far as to claim that Congress could prohibit the interstate shipment of cotton picked by children, asked one Senator. “Yes,” Beveridge retorted, “or [by] a redheaded girl.”
1. 41 Cong. Rec. 1808.
2. Trattner, Walter I., Crusade for the Children: A History of the National Child Labor Committee and Child Labor Reform in America (Chicago: Quadrangle Books, 1970)Google Scholar; Braeman, John, “Albert J. Beveridge and the First National Child Labor Bill,” Indiana Magazine of History 60 (1964): 1–36Google Scholar; and Wood, Stephen B., Constitutional Politics in the Progressive Era: Child Labor and the Law (Chicago: University of Chicago Press, 1968)Google Scholar.
3. Works examining earlier periods have increasingly recognized the interaction between constitutional argument and party politics: McCurdy, Charles W., The Anti-Rent Era in New York Law and Politics, 1839–1865 (Chapel Hill: University of North Carolina Press, 2001)Google Scholar; and Leonard, Gerald, The Invention of Party Politics: Federalism, Popular Sovereignty, and Constitutional Development in Jacksonian Illinois (Chapel Hill: University of North Carolina Press, 2002)Google Scholar, as have studies of interest groups during the Progressive Era: Ernst, Daniel R., Lawyers Against Labor: From Individual Rights to Corporate Liberalism (Urbana: University of Illinois Press, 1995)Google Scholar; and Forbath, William E., Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991)CrossRefGoogle Scholar. Nevertheless, the assumptions those works challenge—that political actors saw constitutional law as either inflexible boundaries of legitimate politics or as rhetorical cover for preferences developed independently—still support specific studies of federal child labor reform and more general examinations of legislative and party politics in the Progressive Era. John Braeman's examination of the Beveridge Bill ignores how constitutional structure shaped Beveridge's political arguments and does not explain why he accepted the central argument against his bill. Braeman, “Beveridge and the Child Labor Bill.” Stephen Wood's examination of the successful passage of federal child labor legislation a decade after the Beveridge Bill indicates that constitutional arguments against that similar bill were merely camouflage for economic and political concerns. Wood, Constitutional Politics in the Progressive Era, 56–58. As an important Progressive Era politician, Beveridge has been the subject of examination, including two full biographies: Braeman, John, Albert J. Beveridge: American Nationalist (Chicago: University of Chicago Press, 1971)Google Scholar; and Bowers, Claude G., Beveridge and the Progressive Era (Cambridge: Riverside Press, 1932)Google Scholar. Those examinations recognize that Beveridge was a lawyer as well as a talented politician, but do not reckon with the way constitutional argument shaped Beveridge's political strategies. Harrison, Robert, Congress, Progressive Reform, and the New American State (New York: Cambridge University Press, 2004)CrossRefGoogle Scholar; and Sanders, M. Elizabeth, Roots of Reform: Farmers, Workers, and the American State, 1877–1917 (Chicago: University of Chicago Press, 1999)Google Scholar are thoughtful examinations of legislative politics in the Progressive Era, but their focus on political and economic issues implies that constitutional politics were unimportant. The examinations of party politics are the same. Gould, Lewis L., Reform and Regulation: American Politics from Roosevelt to Wilson, 2nd ed. (New York: Alfred Knopf, 1986)Google Scholar; Sarasohn, David, The Party of Reform: Democrats in the Progressive Era (Jackson, MS: University Press of Mississippi, 1989)Google Scholar; Merrill, Horace Samuel and Merrill, Marion Galbraith, The Republican Command, 1897–1913 (Lexington: University Press of Kentucky, 1971)Google Scholar; and Holt, James, Congressional Insurgents and the Party System, 1909–1916 (Cambridge, MA: Harvard University Press, 1967)Google Scholar.
4. Champion v. Ames, 188 U.S. 321 (1903).
5. Discussing the principle are Barry Cushman, Rethinking the New Deal Court (New York: Oxford University Press, 1998): 109–112; Cushman, Barry, “Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract,” The Supreme Court Review (1992): 240–41Google Scholar; Fiss, Owen M., Troubled Beginnings of the Modern State: 1888–1910 (New York: Macmillan Publishing Co., 1993), 119–28Google Scholar, 168; and Semonche, John E., Charting the Future:The Supreme Court Responds to a Changing Society, 1890–1920 (Westport, CT: Greenwood Press, 1978), 215Google Scholar. As I discuss in Section IV, the principle meant that an expansion of Congress's commerce power would increase the scope not just of federal power but also of government power more generally. It thus gave opponents of hours and wages regulation a powerful reason to oppose any expansion of federal power.
6. Beveridge, Albert J., “Child Labor and the Nation,” Annals of the American Academy of Political and Social Science 29 (1907): 115–24CrossRefGoogle Scholar; and Braeman, “Beveridge and the Child Labor Bill,” 17.
7. Lodge submitted S. 6730, “To prohibit the employment of children in the manufacture or production of articles intended for interstate commerce,” in the second session of the Fifty-ninth Congress. Lodge, unlike Beveridge, did little to push his bill forward, letting it die in the Committee on Education and Labor, and working instead for the passage of a child labor regulation for the District of Columbia. 41 Cong. Rec. 197–202 (1907).
8. Beveridge to George Lorimer, December 3, 1906, Papers of Albert J. Beveridge, Library of Congress (hereinafter cited as Beveridge Papers).
9. Gerring, John, Party Ideologies in America, 1828–1996 (New York: Cambridge University Press, 1998), 57–124CrossRefGoogle Scholar; and Bensel, Richard Franklin, The Political Economy of American Industrialization, 1877–1900 (Cambridge: Cambridge University Press, 2000)CrossRefGoogle Scholar.
10. Gould, Reform and Regulation; and McCormick, Richard L., The Party Period and Public Policy: American Politics from the Age of Jackson to the Progressive Era (New York: Oxford University Press, 1986)Google Scholar.
11. Upton Sinclair's The Jungle (New York, Doubleday, Page & Co., 1906); David Graham Phillips's The Treason of the Senate, Cosmopolitan Magazine, February, 1906; and Lincoln Steffens’ The Struggle for Self Government were all published that year. McCormick, The Party Period and Public Policy, 332.
12. Harrison, Congress, Progressive Reform, and the New American State, 107.
13. Merrill and Merrill, The Republican Command, 1897–1913, 4; and Harrison, Congress, Progressive Reform, and the New American State, 194–97.
14. Harrison, Congress, Progressive Reform, and the New American State, 185.
15. Braeman, Albert J. Beveridge: American Nationalist, 20–21, 87–88.
16. Ibid., 1–81.
17. Harrison, Congress, Progressive Reform, and the New American State, 34–35; and Braeman, Albert J. Beveridge: American Nationalist, 80.
18. Braeman, Albert J. Beveridge: American Nationalist, 97–121.
19. Beveridge to Isaac Seligman, November 13, 1907, Beveridge Papers.
20. Braeman, John, “The Square Deal in Action: A Case Study in the Growth of the ‘National Police Power’,” in Change and Continuity in Twentieth-Century America, ed. Braeman, John, Bremner, Robert H., and Walters, Everett (Columbus, OH: Ohio State University Press, 1964), 54, 78Google Scholar.
21. Reprinted at Beveridge, Albert, The Meaning of the Times and Other Speeches (Freeport, NY: Books for Libraries Press, 1968), 263–64Google Scholar.
22. Braeman, Albert J. Beveridge: American Nationalist, 100–101.
23. Braeman, “Beveridge and the Child Labor Bill,” 6; and Anderson, Oscar E., The Health of a Nation: Harvey W. Wiley and the Fight for Pure Food (Chicago: University of Chicago Press, 1958), 176Google Scholar.
24. Beveridge to Albert Shaw, May 26, 1906, Beveridge Papers.
25. Beveridge to Theodore Roosevelt, August 21, 1906, Papers of Theodore Roosevelt, Library of Congress.
26. Gould, Reform and Regulation, 96–98; and “Roosevelt Says Nation Must Curb Plutocracy,” New York Times, October 5, 1906, 4. For Beveridge's support of this program, see Albert J. Beveridge to Theodore Roosevelt, November 24, 1906, Beveridge Papers.
27. “Roosevelt Says Nation Must Curb Plutocracy,” 4.
28. Beveridge to Theodore Roosevelt, October 22, 1907, Beveridge Papers.
29. Beveridge to Butler Ames, November 14, 1906, Beveridge Papers.
30. Beveridge to Theodore Roosevelt, November 24, 1906, Beveridge Papers.
31. Beveridge to William Loeb, November 12, 1906, Beveridge Papers.
32. Beveridge to Albert Shaw, November 22 1906, Beveridge Papers.
33. Bowers, Beveridge and the Progressive Era, 32.
34. Ibid, 37, 40–41.
35. Beveridge, Albert, The Vitality of the American Constitution (Address delivered before the Allegheny County Bar Association) (Pittsburgh: The Eichbaum Press, 1898), 10–11Google Scholar.
36. Ibid., 19.
37. See, for example, Champion v. Ames, 364–65; Freund, Ernst, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan & Company, 1904)Google Scholar; and Abbot, Everett V., “The Police Power and the Right to Compensation,” Harvard Law Review 3 (1889): 189–205CrossRefGoogle Scholar.
38. Nelson, Caleb, “Judicial Review of Legislative Purpose,” New York University Law Review 83 (2008): 1784–882Google Scholar.
39. Cooley, Thomas McIntyre, The General Principles of Constitutional Law in the United States of America (Boston: Little, Brown & Co., 1898), 70CrossRefGoogle Scholar. If both the states and the federal government attempted to regulate in one of those areas, the Supremacy Clause ensured that the federal regulation controlled.
40. United States v. Dewitt, 76 U.S. 41, 44–45 (1869).
41. Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States (Boston: Houghton, Mifflin and Company, 1886), 312Google Scholar.
42. Beveridge to Albert Shaw, November 13, 1906, Beveridge Papers.
43. Ibid.
44. Ibid.
45. 41 Cong. Rec. 1552 (1907).
46. Hammer v. Dagenhart, 247 U.S. 251 (1918); Brief for Appellants, Hammer v. Dagenhart, 247 U.S. 251 (No. 704); and To Prevent Interstate Commerce in the Production of Child Labor, S. Rep. 64-58, at 16–23 (1916).
47. Beveridge to Theodore Roosevelt, October 22, 1907, Beveridge Papers; 41 Cong. Rec. 1881–83.
48. Champion v. Ames, 321.
49. Beveridge, Albert and Bryan, William Jennings, “The Nation Versus States Rights I,” The Reader 9 (1907): 360Google Scholar.
50. Champion v. Ames, 357–58.
51. Ibid., 362–63.
52. Beveridge to Theodore Roosevelt, October 22, 1907, Beveridge Papers; and 41 Cong. Rec. 1875–77, 81.
53. Beveridge to Theodore Roosevelt, October 22, 1907, Beveridge Papers.
54. Beveridge to Theodore Roosevelt, November 24, 1906, Beveridge Papers.
55. Beveridge to George Lorimer, December 15, 1906, Beveridge Papers.
56. Sanders, Roots of Reform, 349; and Braeman, “Beveridge and the Child Labor Bill.”
57. Most notably, although the North did employ more children than the South, it also had stricter child labor laws. Northern businesses should have therefore supported a national standard to eliminate the competitive advantage of Southern manufacturers, a point Republican Senators Nelson Aldrich and Henry Cabot Lodge recognized and at least one Northern manufacturer tried to drive home to President Roosevelt, 41 Cong. Rec. 1822. Gould to Theodore Roosevelt, January 28, 1905, Papers of Theodore Roosevelt, Library of Congress.
58. Beveridge to Butler Ames, November 14, 1906, Beveridge Papers; and A Bill to Prevent the Employment of Children in Factories and Mines, H.R. 21404, 59th Cong., 2nd sess. (1906).
59. Committee on the Judiciary, Jurisdiction and Authority of Congress Over the Subject of Woman and Child Labor, H.R. Rep. No. 59-7304, at 2 (1907).
60. 41 Cong. Rec. 50.
61. Ibid., 449.
62. Ibid., 612.
63. Ibid., 1552–57, 1792–1883.
64. Merrill and Merrill, The Republican Command, 1897–1913, 18.
65. Harrison, Congress, Progressive Reform, and the New American State, 35–36.
66. Knox, Philander C., “The Development of the Federal Power to Regulate Commerce,” Yale Law Journal 17 (1908): 148CrossRefGoogle Scholar.
67. Ibid., 145.
68. 41 Cong. Rec. 1871, 1875.
69. Ibid., 1825, 1878–79.
70. Ibid., 1879; and Revised Brief for the United States on Third Oral Argument at 31, Champion v. Ames, 188 U.S. 321 (1903) (No. 9).
71. 41 Cong. Rec. 1872–75.
72. Ibid., 1872.
73. Ibid., 1874.
74. Ibid., 1824–26, 73–75.
75. Beveridge to Theodore Roosevelt, October 22, 1907, Beveridge Papers.
76. 41 Cong. Rec. 1552–57, 1792–883.
77. Lochner v. New York, 198 U.S. 45 (1905).
78. Lochner v. New York, 198 U.S. 45 (1905); and Adair v. United States, 208 U.S. 161 (1908).
79. Lochner v. New York, 198 U.S. 45 (1905), 53.
80. 41 Cong. Rec. 1874.
81. Ibid., 1822.
82. H.R. Rep. No. 7304, 7–8 (1907).
83. 41 Cong. Rec. 1873.
84. Ibid., 1825.
85. Ibid., 1873–76.
86. Ibid., 1875–76.
87. Ibid., 1826.
88. Braeman, Albert J. Beveridge, 136–37; Beveridge, “The Relation of the State to Labor,” The Reader: An Illustrated Monthly Magazine 10 (1907): 383–85Google Scholar.
89. Scholars noting the principle are listed in footnote 5. Scholars accepting the traditional understanding include Wiecek, William, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998), 152–56CrossRefGoogle Scholar and Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993), 139–40Google Scholar.
90. See Monongahela Navigation Co. v. United States, 148 U.S. 312, 336 (1893) (applying the 5th Amendment's takings clause to require the United States to pay for property taken pursuant to its commerce power).
91. Separating the question of how the Commerce Clause affects the substantive scope of liberty of contract from whether the Fifth Amendment applies to exercises of the commerce power was what Frank Goodnow (perhaps purposely) confused in Social Reform and the Constitution (New York: The Macmillan Company, 1911), 89Google Scholar.
92. Wiecek, The Lost World of Classical Legal Thought, 107–12; Fiss, Troubled Beginnings of the Modern State, 157–78; Gillman, The Constitution Besieged; and Benedict, Michael Les, “Laissez Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez Faire Constitutionalism,” Law and History Review 3 (1985): 293–331CrossRefGoogle Scholar.
93. United States v. Trans-Missouri Freight Association, 166 U.S. 290 (1897). The Supreme Court famously exchanged its literalist understanding of the Sherman Act for the “rule of reason” in United States v. American Tobacco Co., 221 U.S. 106 (1911); and Standard Oil of New Jersey v. United States, 221 U.S. 1 (1911).
94. Trans-Missouri Freight, 340.
95. The brief especially emphasized Allgeyer v. Louisiana, 165 U.S. 578 (1893), which established that the Fourteenth Amendment protected liberty of contract, as well as a plethora of state cases, including Godcharles v. Wigeman, 113 Pa. 431, 6 A. 354 (1886); and People v. Gillson, 109 N.Y. 389 (1888).
96. Brief for the Central Railroad Company of New Jersey at 2, United States v. Joint Traffic, 171 U.S. 505 (1898) (No. 341).
97. United States v. Joint Traffic Association, 171 U.S. 505, 569, 572–73 (1898).
98. United States v. Joint Traffic Association, 175 U.S. 211 (1899).
99. Addyston Pipe & Steel Co. v. United States, 229.
100. Adair v. United States, 208 U.S. 161 (1908).
101. Brief for the United States at 21, Adair v. United States, 208 U.S. 161 (1908) (No. 293).
102. Adair v. United States, 176.
103. Adair v. United States, 176–80; and Cushman, “Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract,” 240–41.
104. Notes, “Liberty of Contract and the Commerce Clause,” Columbia Law Review 8 (1908): 302Google Scholar; Comments, “The Unconstitutionality of the Erdmann Act of 1898,” Yale Law Journal 17 (1908): 614–16CrossRefGoogle Scholar.
105. Popular press accounts include, “Child Labor Assailed,” Washington Post, January 24, 1907, 4; “Child Labor Laws,” New York Times, January 28, 1907, 6; “Extremely Dangerous?,” Washington Post, February 4, 1907, 6; “Comment,” Harper's Weekly, February 9, 1907, 2; and “A Study in States’ Rights,” Washington Post, February 26, 1907, 6.
106. “Constitution and Child Labor,” Washington Post, January 31, 1907, 6.
107. Knox, “Development of Federal Power to Regulate Commerce”; John W. Davis, “Growth of the Commerce Clause, Part I,” American Lawyer 15 (1907): 171–76; and Rogers, Henry Wade, “The Constitution and the New Federalism,” North American Review 188 (1908): 321–35Google Scholar.
108. Clayton, Joseph Culberson, “The True Constitution: Suggestions toward its Interpretation,” American Lawyer 15 (1907): 121–24Google Scholar; and Bryan, William Jennings, “Our Dual Government,” The Reader 9 (1907): 349–56Google Scholar.
109. Maxey, Edwin, “The Constitutionality of the Beveridge Child Labor Bill,” The Green Bag 19 (1907): 290–92Google Scholar; Bruce, Andrew Alexander, “The Beveridge Child Labor Law and the United States as Parens Patriae,” Michigan Law Review 5 (1907): 627–38CrossRefGoogle Scholar; [anonymous review] “Federal Police Power,” review of Maxey, Edwin, “The Constitutionality of the Beveridge Child Labor Bill,” Harvard Law Review 20, (1907): 658–59Google Scholar.
110. They did eventually abandon the Beveridge Bill, but only when it was clear that it would not pass and that Beveridge's strategy was holding up a child labor law for the District of Columbia. Even then, the NCLC was careful not to reject the idea of federal regulation. Trattner, Crusade for the Children, 87–92.
111. Kelley's legal acumen is discussed in Felice Batlan, “Florence Kelley and the Battle Against Laissez-Faire Constitutionalism,” working paper, http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1462970 (March 4, 2011); and Sklar, Kathryn Kish, Florence Kelley and the Nation's Work: The Rise of Women's Political Culture, 1830–1900 (New Haven: Yale University Press, 1995)Google Scholar.
112. Brief for the Central Railroad Company of New Jersey, United States v. Joint Traffic, 171 U.S. 505 (1898) (No. 341).
113. Robert W. DeForest to Edgar Gardner Murphy, May 28, 1907, Papers of Edgar Gardner Murphy (Wilson Library, Chapel Hill, North Carolina); Robert W. DeForest to Paul Warburg, December 6, 1906, Papers of the National Child Labor Committee (Manuscript Division, Library of Congress); and Francis G. Caffey to Edgar Gardner Murphy, November 30,1906, Papers of Edgar Gardner Murphy (Wilson Library, Chapel Hill, North Carolina).
114. Alexander McKelway, the NCLC's Washington lobbyist, defended the Bill by referring to Beveridge's “masterly Constitutional argument” several weeks after Beveridge's speech. McKelway, Alexander, “The Evil of Child Labor: Why the South Should Favor a National Law,” Outlook 85 (1907): 360–64Google Scholar.
115. 41 Cong. Rec. 1874.
116. Ibid., 1883, 2065, 3300, 4100.
117. Beveridge to Theodore Roosevelt, October 22,1907, Beveridge Papers.
118. Champion v. Ames, 363.
119. 40 Cong. Rec. 2762.
120. Sklar, Martin J., The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (New York: Cambridge University Press, 1988)CrossRefGoogle Scholar.
121. United States v. Trans-Missouri Freight Association, 290; United States v. Joint Traffic Association, 505; Addyston Pipe & Steel Co. v. United States, 211 (1899); Northern Securities Co. v. United States, 193 U.S. 197 (1904).
122. Senator Nathan Scott of West Virginia owned a glass factory himself and argued for the benefits of child labor, but still supported the District of Columbia child labor law. 41 Cong. Rec. 196–99, 207.
123. Standard Oil of New Jersey v. United States, 1; United States v. American Tobacco Co, 106.
124. An Act to Prevent Interstate Commerce in the Products of Child Labor and for Other Purposes: Hearings on H.R. 8234, Day 3, Before the Committee on Interstate Commerce, 64th Cong. 114 (1916) (statement of Thomas Parkinson, Director of the Legislative Drafting Bureau at Columbia University).
125. Ibid, 117.
126. Ibid, 118.
127. Ibid, 123.
128. Hammer v. Dagenhart, 247 U.S. 251.
129. United States v. Darby, 312 U.S. 100 (1941).
