Hammer v. Dagenhart

Hammer v. Dagenhart, 247 U.S. 251 (1918), argued 15–16 Apr. 1918, decided 3 June 1918 by vote of 5 to 4; Day for the Court, Holmes, McKenna, Brandeis, and Clarke in dissent. As the Progressive movement (see Progressivism) coalesced early in the twentieth century, Congress increasingly used the commerce power and taxing and spending power for police power purposes, enacting regulatory legislation to ameliorate social problems deemed national in character. Prominent among these problems was concern for children working outside their homes, who were dependent, often exploited, nearly always powerless to effect the conditions under which they labored. As it became increasingly apparent that state legislation could not effectively establish national regulatory standards, reformers turned to Congress, seeking federal legislation that would abolish child labor. In 1916, in what became recognized as the climax of the Progressive movement, substantial majorities in the House and the Senate enacted the Keating‐Owen Child Labor Act, which utilized the commerce power to bar goods made by children from interstate commerce.

Because the Supreme Court had repeatedly legitimated national police power enactments, notably in such seemingly decisive holdings as Champion v. Ames (1903), Hipolite Egg Company v. United States (1911), and Hoke v. United States (1913), it was widely expected that the Supreme Court would build upon this precedential foundation in its decision in Hammer v. Dagenhart. The earlier opinions seemed to establish the principle that Congress could use its power over commerce to prohibit interstate transportation as the national welfare dictated. Congress had authority, Hoke had declared, “to occupy, by legislation, the whole field of interstate commerce” (p. 320).

However, a five‐justice majority on a bitterly divided bench rejected this constitutional justification and recurred to a line of reasoning thought to have been repudiated earlier in the century. Justice William Rufus Day's opinion rested upon the distinction between manufacture and commerce enunciated in United States v. E. C. Knight Co. (1895): the congressional “power is one to control the means by which commerce is carried on, which is directly the contrary of the assumed right to forbid commerce” (pp. 269–270). He condemned the Keating‐Owen law as having reached an area of regulation wholly within the ambit of the states and exerting power not warranted in the Constitution. While conceding that child laborers needed protection, Day charged Congress with action destructive to federalism. “[T]he far‐reaching result,” if Congress was not stopped, he assented, was that “all freedom of commerce will be at an end … and thus our system of government be practically destroyed” (p. 276). This resort to the grand peur was characteristic of the doctrines of constitutional laissez‐faire to which the majority now returned.

Writing with uncharacteristic passion, Justice Oliver Wendell Holmes fashioned one of the most notable dissenting opinions in the Court's history. He excoriated the majority for intruding their personal judgments “upon questions of policy and morals” (p. 280). “I should have thought,” Holmes wrote, “that if we were to introduce our own moral conceptions where, in my opinion, they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States” (p. 280). To Holmes, one analytical proposition was indisputable: the congressional prohibition applied only at the point where an offending state sought to transport its commercial products across its borders into national commerce. “Regulation means the prohibition of something” (p. 277), he argued, and he enumerated the line of constitutional development, stretching back to Veazie Bank v. Fenno (1869), in which the Court had lent sanction to national regulation of the kind embodied in the Keating‐Owen law. “The power to regulate commerce and other constitutional powers could not be cut down or qualified,” he asserted, as a consequence of their “indirect effects” (p. 278).

Holmes's revulsion at what he considered the majority's defiance of the democratic will mirrored the consternation evident throughout the country. Congress swiftly responded by enacting the second federal child labor law, using the taxing power to apply against manufacturers the same regulatory standards embodied in the Keating‐Owen law (see Taxing and Spending Clause). Even though the Court overturned this statute in *Bailey v. Drexel Furniture Co. (1922), the minority was vindicated two decades later, following the Constitutional Revolution in 1937, when a unanimous bench in United States v. *Darby Lumber Co. (1941) adopted and, indeed, went beyond the constitutional principles set forth in what Justice Harlan Fiske *Stone characterized as Holmes's “powerful and now classic dissent” (p. 115).

See also Labor; State Regulation of Commerce.

Bibliography

Stephen B. Wood , Constitutional Politics in the Progressive Era (1968).

Stephen B. Wood