It seems that liberal commenters on constitutional law just can’t resist bringing of the issue of child labor, regardless of whether what they’re saying is historically accurate. The latest offender is Dahlia Lithwick. In criticizing Judge Janice Brown’s call for a return to pre-New Deal, Lochnerish concern for economic rights Lithwick writes, “Let’s put aside the extraordinary nature of Brown’s substantive argument, which holds so little regard for ‘democratic processes’ and would gladly upend such odious regulatory regimes like child labor laws.”
So let me repeat it one more time. In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I’ve blogged before that I’m not aware of ANY court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or “liberty of contract”, and no one has written in to correct me (for examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)). All
fifty (oops, 48) states passed child labor laws before 1937, when Lochner was overruled. Economic liberty concerns were not a barrier to the spread of such legislation.
For the last seventy-plus years most liberal scholars and commentators (and almost all until recently) have refused to take the pre-New Deal Supreme Court constitutional jurisprudence seriously as anything beyond an expression of “reactionary” economic ideology or class warfare. They have therefore have assumed that since the Supreme Court invalidatedfederal child labor laws 5-4 as beyond the scope of the commerce clause, this must have reflected a general “conservative” hostility to such laws, as opposed to a sincere (albeit controversial) interpretation of the Constitution. They therefore further assume, falsely, that the courts must have been hostile to state and local child labor laws, and used “economic freedom” arguments to invalidate such laws.
So let’s repeat. Federal child labor laws before FDR’s appointees took over the Supreme Court: constitutionally questionable as an exercise of the power to regulate interstate commerce. State and local child labor laws: clearly constitutional as within the police power. Doctrine did make a difference, and it’s high time that Lithwick and others stop relying on myths that could be quickly rebutted with a modicum of research.
Meanwhile, I’ve never seen ANY modern conservative or libertarian constitutional scholar argue, as Lithwick implies, that state and local child labor laws would be unconstitutional as violations of economic freedom. So if the historical “Lochner era” courts okayed child labor laws, and there’s no prospect of future Lochnerish holding that such laws violate liberty of contract, raising this particular canard doesn’t exactly inspire confidence.
UPDATE: Even Christopher Tiedeman, who took many radically libertarian positions (for his day) in his late-nineteenth century works on constitutional law–he argued, for example that drug laws and laws banning interracial marriage, upheld 9-0 by the Supreme Court, were unconstitutional–acknowledged that child labor laws were constitutionally valid.