Keating-Owen Act

views updated

Keating-Owen Act

United States 1916


In 1916 Congress passed the Keating-Owen Act, which regulated the hours and wages of child labor and prohibited interstate transportation of products made in violation of the act. Although reformers hailed the bill as a major step toward alleviating the evils of child labor, manufacturers maintained that in passing the bill Congress had exceed its powers under the commerce clause of the U.S. Constitution. In 1918 the U.S. Supreme Court agreed, holding in Hammer v. Dagenhart that the federal act was unconstitutional.


  • 1898: United States defeats Spain in the three-month Spanish-American War. As a result, Cuba gains it independence, and the United States purchases Puerto Rico and the Philippines from Spain for $20 million.
  • 1903: Russia's Social Democratic Party splits into two factions: the moderate Mensheviks and the hard-line Bolsheviks. Despite their names, which in Russian mean "minority" and "majority," respectively, Mensheviks actually outnumber Bolsheviks.
  • 1910: Revolution breaks out in Mexico and will continue for the next seven years.
  • 1914: On 28 June in the town of Sarajevo, then part of the Austro-Hungarian Empire, Serbian nationalist Gavrilo Princip assassinates Austrian Archduke Francis Ferdinand and wife Sophie. In the weeks that follow, Austria declares war on Serbia, and Germany on Russia and France, while Great Britain responds by declaring war on Germany. By the beginning of August, the lines are drawn, with the Allies (Great Britain, France, Russia, Belgium, Serbia, Montenegro, and Japan) against the Central Powers (Germany, Austria-Hungary, and Turkey).
  • 1916: Battles of Verdun and the Somme are fought on the Western Front. The latter sees the first use of tanks, by the British.
  • 1918: The Bolsheviks execute Czar Nicholas II and his family. Soon civil war breaks out between the communists and their allies, known as the Reds, and their enemies, a collection of anticommunists ranging from democrats to czarists, who are known collectively as the Whites. In March, troops from the United States, Great Britain, and France intervene on the White side.
  • 1918: The Second Battle of the Marne in July and August is the last major conflict on the Western Front. In November, Kaiser Wilhelm II abdicates, bringing an end to the war.
  • 1918: Upheaval sweeps Germany, which for a few weeks in late 1918 and early 1919 seems poised on the verge of communist revolution—or at least a Russian-style communist coup d'etat. But reactionary forces have regained their strength, and the newly organized Freikorps (composed of unemployed soldiers) suppresses the revolts. Even stronger than reaction or revolution, however, is republican sentiment, which opens the way for the creation of a democratic government based at Weimar.
  • 1918: Influenza, carried to the furthest corners by returning soldiers, spreads throughout the globe. Over the next two years, it will kill nearly 20 million people—more than the war itself.
  • 1921: As the Allied Reparations Commission calls for payments of 132 billion gold marks, inflation in Germany begins to climb.
  • 1925: European leaders attempt to secure the peace at the Locarno Conference, which guarantees the boundaries between France and Germany, and Belgium and Germany.

Event and Its Context

The Child Labor Problem

In 1900 the United States was a different nation than it had been just 50 years earlier. The Industrial Revolution, improvements in technology, the expansion of the railroad system, immigration, and the westward sweep of America created a powerful industrial nation, but one that was also rent by grave social and economic injustices.

One of these injustices was child labor. The factory system, with its emphasis on simple, repetitive processes and its seemingly insatiable demand for unskilled labor—and rationalized by a spirit of Social Darwinism and the prevailing laissez-faire economic spirit of the times—provided fertile ground for the exploitation of children. In 1870 the Census Bureau first started collecting information about the employment of children. By 1900 a startling one in six children between the ages of 10 and 15, or about 1.75 million, was gainfully employed. About 60 percent of these children were employed in farming, and 16 percent, or about 280,000, were employed in manufacturing. The remaining 24 percent worked in personal and domestic service, street trades, and the like. Nearly all of these children, whose numbers by 1910 had risen to 1.99 million, were from the bottom rungs of the economic ladder: they were the sons and daughters of recent immigrants, the growing urban working classes, and those who depended on the southern cotton mills for their survival.

As early as the mid-nineteenth century, humanitarian reformers tried to end child labor by pressing for state and local legislation to limit the workday for children to 10 hours, but these laws were rarely enforced. It was not until the early twentieth century and the Progressive Era that serious efforts at reform took shape. Under the leadership of reformer Edgar Gardner Murphy, the National Child Labor Committee was formed in 1904. During Theodore Roosevelt's second term, the committee was successful in getting two-thirds of the states to pass reform legislation or to strengthen existing laws; by 1914 all but two of the 48 states had done so. On the federal level, reformers found a congressional supporter in Senator Albert Beveridge, a popular, flamboyant figure who championed a variety of social causes and who, in January 1907, harangued the Senate for three days in an effort to end "child slavery." His bill to this end, however, met with opposition largely based on uncertainty about the extent of congressional power to pass federal legislation that would interfere with economic activity within the states, particularly when that legislation would be designed to deal with what was essentially a moral problem.

The Turning Point: 1913

A turning point occurred in 1913. That year the U.S. Supreme Court upheld the constitutionality of the Mann Act, the famous "white slavery" act that made it a federal crime to transport prostitutes over state lines. The significance of the decision was that the Supreme Court affirmed that the commerce clause of the Constitution gave Congress the power "to occupy, by legislation, the whole field of interstate commerce" and that it could do so for the purpose of protecting health, morals, or welfare.

Emboldened by this Court decision and believing that progressive public opinion had turned against child labor, the National Child Labor Committee decided to focus its efforts on federal legislation. In April 1913 five bills were submitted to Congress, including the resurrected Beveridge bill. Other matters took precedence, however, and it was not until February 1914 that serious debate began on the most promising of these bills. The bill sponsored by Representative A. Mitchell Palmer from Pennsylvania and Senator Robert L. Owen from Oklahoma called for a minimum wage and an eight-hour workday for children aged 14 through 16. Opposition from southern cotton mill owners surfaced immediately. They argued that stiff competition and thin profit margins forced them to require 11-and 12-hour shifts. More fundamentally, they objected to federal intervention in what they perceived as a state matter, and they argued that local lawmakers were in a better position to pass regulations that would take into account local conditions. Congress adjourned in early 1915, however, before the bill could come to a vote.

Later that year Colorado representative Edward Keating replaced Palmer as House sponsor of the bill, now known as the Keating-Owen bill. They reintroduced the bill in the 64th Congress. In early 1916 hearings began before the House Committee on Labor and the Senate Committee on Interstate Commerce. In addition to limiting working hours and prohibiting employment of children aged 13 and under, the bill would give authorities police power to remove illegal child laborers from factories, mills, and mines. Further, manufacturers who illegally used child labor would see their products banned from interstate commerce. Again southern mill owners rose in opposition, choosing North Carolina Governor W. W. Kitchin to represent them before Congress. Kitchin's arguments were the same as the mill owners' had been in 1914-1915: federal regulation of child labor would harm southern mill owners and that in passing such a law, Congress would exceed its powers by invading the jurisdiction of the states. Over well-organized opposition, however, the House passed the bill in February by a vote of 337 to 46, and in August the Senate passed it 52 to 12. On 1 September 1916 President Woodrow Wilson, before a large gathering, signed the bill into law.

Challenge to the Keating-Owen Act

The southern mill owners needed a figurehead to test the constitutionality of the act. They found one in the Dagenhart family, a father and two sons who worked for a small cotton mill in North Carolina. The circumstances were ideal, for the older son was 15 and under North Carolina law could work for up to 11 hours a day at piece rates; thus, an eight-hour day would cut his earnings. The younger son was 13, and under the Keating-Owen Act he could not work in the mill at all. In the name of the father, Roland Dagenhart, the mill owners filed suit in district court to enjoin enforcement of the act. After the district court held that the act was unconstitutional and enjoined its enforcement, U.S. Attorney W. C. Hammer appealed the ruling to the U.S. Supreme Court, which heard Hammer v. Dagenhart in 1918.

Hammer made two fundamental arguments. The first was that the power of Congress to regulate interstate commerce, as specified in the Constitution, encompassed the power to regulate the interstate transportation of goods. The Court itself had upheld congressional power to regulate the interstate transportation of impure food and of prostitutes. The second argument was that Congress had the power to prohibit the transportation of goods made by children because those goods unfairly competed with the presumably more expensive goods that were made lawfully, without child labor, in other states.

In a blow to opponents of child labor, the Court, by a vote of 5 to 4, rejected these arguments, declared the Keating-Owen Act unconstitutional, and affirmed the injunction. Justice William Rufus Day delivered the opinion of the majority. In rejecting Hammer's first argument, Day wrote that the power of Congress to regulate interstate commerce extended only to such commerce that had evil results. The Keating-Owen Act did not apply to the movement of goods in interstate commerce but simply regulated the conditions under which those goods were made. The goods in question, unlike impure food and prostitutes, were not harmful or illegal; the fact that they were intended for interstate commerce did not bring their production under federal control. The means of production, the Court held, were subject only to local regulation.

In disposing of Hammer's second argument, the Court reasoned that the commerce clause did not give Congress the power to pass laws designed to equalize economic conditions between the states. Nor could it require the states to exercise their police power to regulate local trade or manufacture. Were the Court to recognize such a power, it would contravene the Tenth Amendment to the Constitution, which reserves those powers not granted to Congress for the states.

Predictably, it was Oliver Wendell Holmes, Jr., with the concurrence of Justices McKenna, Brandeis, and Clarke, who took a different view. In his dissent, Holmes pointed out that without the Constitution, no manufacturer in any state would be able to ship its goods across state lines without the permission of those other states; therefore, the Constitution of course authorizes Congress to regulate the interstate shipment of goods. Holmes also reaffirmed the evils of child labor: "If there is any matter upon which civilized countries have agreed—far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotionally aroused—it is the evil of premature and excessive child labor."


In 1933 Congress passed the National Industrial Recovery Act, and in 1938, the Fair Labor Standards Act—both of which contained provisions that restricted child labor. Once again these provisions were tested, but in 1941, in United States v. Darby Lumber Co., the Court repudiated its 1918 ruling, upholding the constitutionality of the acts and the power of Congress under the commerce clause to regulate interstate commerce. Justice Holmes's 1918 dissent became the law of the land.

Key Players

Beveridge, Albert J. (1862-1927): Born in Lorain, Ohio, Beveridge was a lawyer who served as a Republican from 1899 to 1911 in the Senate, where he avidly supported antitrust and child labor legislation. He published The Life of John Marshall in 1916.

Day, William Rufus (1849-1923): Born in Ravenna, Ohio, Day was secretary of state under William McKinley and helped to negotiate the treaty that ended the Spanish-American War. Theodore Roosevelt appointed him to the Supreme Court, where he served from 1903 to 1922.

Holmes, Oliver Wendell, Jr. (1841-1935): Holmes was born in Boston, was seriously wounded three times in the Civil War, and practiced law before serving on the Massachusetts Supreme Court (1882-1902; chief justice 1899-1902). Theodore Roosevelt nominated him to the Supreme Court (1902-1932), where he became known as the "Great Dissenter" for the power of his frequent dissenting opinions.

Keating, Edward (1875-1965): Keating was born on a farm near Kansas City, Kansas. He began his career as a journalist and eventually became editor of the Rocky Mountain News. He was elected as a Democrat from Colorado to the House of Representatives and served from 1913 to 1919.

Owen, Robert Latham (1856-1947): Owen, part Cherokee, was born in Lynchburg, Virginia. In later life he became active in tribal affairs in the Indian Territory, and he played an important role in the congressional act that granted citizenship to Native Americans there. When Oklahoma became a state, he won a seat in the Senate (1907-1925), where he sponsored progressive labor legislation.

See also: Fair Labor Standards Act; National Child Labor Committee; National Industrial Recovery Act.



Hindman, Hugh. Child Labor: An American History.Armonk, NY: M. E. Sharpe, 2002.

Hobbs, Sandy, Jim McKechnie, and Michael Lavalette. Child Labor: A World History Companion. Santa Barbara, CA: ABC-CLIO, 1999.

Langhorne, Elizabeth Dabney, and Lewis Otey. The Beginnings of Child Labor Legislation in Certain States: A Comparative Study. Manchester, NH: Ayer, 1974.

Wood, Stephen B. Constitutional Politics in the Progressive Era: Child Labor and the Law. Chicago: University of Chicago Press, 1968.


Hammer v. Dagenhart, 247 U.S. 251 (1918).

United States v. Darby Lumber Co., 312 U.S. 100 (1941).

—Michael J. O'Neal

About this article

Keating-Owen Act

Updated About content Print Article