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attendance laws come from keeping children in school that, according to the National Educational Association, there are 3,000,000 (or one out of five) between seven and fourteen, not regularly attending any school. Nor do school laws cover over-long hours, night work, physical fitness for a particular occupation, nor the possibility of moral hazard or industrial disease and accident. Every state in the Union has found that more than school laws were necessary to protect the children.
Our second fundamental proposition is that the pending amendment is properly drawn. Obviously we have not time to discuss this amendment in detail and we readily acknowledge our disadvantage in debating a purely legal question with one of our nation's most outstanding legal authorities, but the two or three points on which we particularly defend this amendment are the following: (1) That it confers a power broad enough to enable the federal government to protect the children who need it. They may be protected to eighteen years of age. Is that age limit too high?
Those who make this objection reveal a vast ignorance of the proposition itself. There is no age limit, properly speaking. This proposed amendment is not a statute; it is a grant of power. If the state of Colorado were without power to pass legislation protecting its children, and a proposal were before the people to confer such power by constitutional amendment, and the amendment were drawn in the form in which this amendment stands, I have no doubt multitudes of people in Colorado would say, "That amendment is too extreme, too drastic, the age limit is too high." As a matter of fact, the state of Colorado already possesses far more power than would be conferred by the adoption of such an amendment. So does every other state. Every state in this Union has the power to limit, regulate, and prohibit the labor of persons, not only up to eighteen years of age, but up to 110 if they live long enough. The proposition before us, therefore, has the intention, as compared with existing state powers, of conferring upon the federal government the same kind of power the states now possess, with the striking difference that where the power of the state extends over the entire span of human life, the power of the federal government is definitely cut off at eighteen years. It is a definite restriction upon our federal power, therefore, rather than a mandate to use it.
But we are asked if it is not our desire that the government should prohibit all child labor under eighteen years of age, why give the government power to do so? This can best be answered by sketching the kind of child labor law I believe my distinguished opponent and all his associates would gladly accept as reasonable: (a) A law to prohibit the employment of children under fourteen years of age in all manufacturing, commercial, and mechanical pursuits, in tenement home work, in canneries, and in those types of agriculture which are carried on to the obvious injury of the children compelled to work in them. (b) To limit the hours of labor for children under sixteen in those occupations to an eight-hour day, six-day week, and no night work. (c) To regulate the employ
ment of children under eighteen so as to exclude them from occupations obviously dangerous to life, limb, or health.
This is our position. We have waited through all these months of heated controversy for our opponents to tell us where they stand. What kind of a child labor law will they stand for? How much protection do they want American children to have? I trust Senator Thomas will favor us by explaining at what point, if any, he would consider such regulation of child labor extreme or drastic. But he may say, "So far as our state is concerned, it does protect them." Yes, but not all states do. If such protection is good for the children of your state, is it not good for the children of all states? How far have we gone in the latter respect? Seven states permit children to go to work at fourteen without evidence of ability to read; 18 states do not make physical fitness for work a condition of employment; 12 states allow children of fourteen to work eight to eleven hours a day, and one has no limit whatever to the day's work; 25 states allow children of fourteen to run elevators; 19 states have no laws prohibiting children of fourteen from working on dangerous machinery; 36 states allow children of sixteen to oil, wipe, or clean machinery in motion; 37 states allow children at 14 to work on scaffolding; 30 states have no laws prohibiting children of fourteen from working around explosives.
Furthermore, if power were given to protect children only up to sixteen, there is no question that the states which protect their children up to eighteen would be urged to trim their laws down to sixteen. And those who are fighting this amendment would be the first to urge such a step-on the ground that federal government did not approve of protection beyond sixteen. But ought this power to be limited in scope so the government could not interfere with farm labor?
It is claimed that this amendment would give the government power to forbid the employment of children under eighteen years on American home farms. If this is a matter to frighten the American people, then we ought all to be frightened anyway, because as a matter of fact each one of us now lives in a state in which the power exists to do the very thing we have been accused of trying to get the government to do. But does anyone believe that the state of Colorado or any state is going to pass a law forbidding children under sixteen from doing any chores on the home farm? Are your people threatening to move from your state because they fear at any moment your legislature will impose this ridiculous restriction upon them? The position taken by our opponents at this point is utterly preposterous, and the servants of the southern cotton mills, who have exploited this idea through their fake organization, the Farmers' State's Rights League, know it is preposterous. But they have also discovered that the easiest kind of propaganda to broadcast in America is that which presents to the public a proposition so utterly devoid of credibility that they automatically believe it. They have been shrewd enough to appeal to the farmer on the ground of a
right he has held from the dawn of agriculture, namely the right to work his own children as early and as long as he wishes.
Our third defense of this amendment is in its use of the word "labor." We are accused of having shrewdly slipped in the word "labor" instead of the word "employment." While that accusation sounds good, it isn't quite level. We haven't slipped it in unless every progressive state in the Union can be accused of having slipped in something in their own law, because every progressive state child labor law provides protection for children far overreaching the limitations of the word "employment." In most states the law provides that children shall not be "employed, permitted or suffered to work." Those of you who are familiar with the methods of American industry and industrialized agriculture are well aware that multitudes of children work under conditions that menace their health and education while they are not employed. The children who work in New York City tenements after school and often to midnight are not "employed"; they only help mother. But they work. The children in the fruit and vegetable canneries, the Gulf Coast and southern Atlantic sea-food canneries, are not employed, they only get up at two or three or four o'clock in the morning, when the whistle blows, informing the little village that the oyster or shrimp boats are in, and they go down to the canning sheds and work until the job is done for the day. When their little pails are full they pass them in and get a metal check. At the end of the day the mother collects her pay for all the checks of the family. So far as the manufacturer is concerned officially, these children do not exist, but we have never been able to see that it was any easier for them to "labor" under these conditions then it would be if they were "employed." In fact, this amendment would not be worth fighting for if it limited the power of the government to regulation of formal employment.
Our fourth defense, which refers to our first proposition rather than to the second, is that any federal legislation in this field can be administered without appreciable expense to the people. It will not build up a vast government bureau costing the people of the country hundreds of millions to maintain. Curiously enough, the objection at this point is advanced by those who are chiefly responsible for the existence of the thirty or forty federal bureaus already established.
We are not aware that they have a grudge against the bureaus for which they are responsible: neither the farmers' organizations in the country against the bureaus in the Department of Agriculture, nor the National Manufacturers' Association against the bureaus in the Department of Commerce, and, in fact, every department of the federal government. The form of this objection at present is an attempted comparison with the government service established to enforce the Volstead act under the Eighteenth Amendment. Our friends say to us, "See the millions of dollars spent, and the hundred thousand agents required to invade everyone's home to support this national prohibition law." This is a false alarm. The first federal law, passed in 1916, required seventeen
field agents to enforce it, and cost $111,000. There is no analogy between the two. The Volstead Act has to do with what multitudes of people regard as the control of their personal habits. Also, it involves an interest in which huge fortunes are invested. Whenever personal habits of huge fortunes are interfered with by law, that law will naturally be expensive and difficult of enforcement. Would a national child labor law have to buck similarly powerful social forces? During the thirty-five months' existence of our two national child labor laws there was no widespread or vociferous indignation against them, no scandal in their enforcement, no corruption in their administration. There were no parades of children insisting upon their freedom of contract, nor of families reclaiming their children from an “imperialist" government. No armored motor cars were used to pursue child labor "bootleggers," and a child labor three-mile limit was never drawn around our coast to protect us from an exploiter's invasion. In fact, one looks in vain for any analogy between the two problems, unless the employers of child labor wish us to believe that they want to violate child labor laws. We refuse to believe it. A national child labor law might, therefore, expect a much different history from that of the administration of the Volstead Act.
And finally, we claim that this amendment would not give the government power to dictate the kind and amount of education of every child. The amendment does not, in fact, confer on the government any power over education. That function is reserved to the states, and could not be exercised by congress without a specific grant of that power. Every constitutional lawyer knows this, whatever his interests may induce him to argue.
We believe, from twenty years' experience, that if this amendment is not ratified generations of children in many parts of our country will have to grow up without the protection you want for the children of your own state. This is why we urge its ratification. We believe our government ought to have power to protect its children, and we believe our government is worthy to be intrusted with such power.
RESOLVED THAT THE PROPOSED TWENTIETH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES SHOULD BE RATIFIED
(DEBATE: NEGATIVE SIDE)
Hon. Charles S. Thomas, Denver
At the outset, let me warn you that it is not possible for anyone fully to present the objections to this proposed amendment in the short space of an hour. Half a day would barely suffice. I can therefore only touch what might be called the high points which convince me that this proposed amendment, miscalled a child labor amendment, is fraught with all the consequences, actual
and potential, which the distinguished speaker who preceded me says has affected the minds of some people who are opposing it. I may be mistaken. I do not pretend to be infallible-perhaps I am-nevertheless, I can cordially agree with the first proposition of the speaker, that the amendment is in no danger of immediate ratification, and I hope he will agree with me when I assert that the danger isn't even remote. The people have pronounced their opinion of it, and once his attention has been seriously given to it, every man of reflection realizes that popular opinion does not consist in what people say, but in what they do.
You will notice that the champion of this resolution was discreetly silent regarding the verdict of Massachusetts. Just before the last election, the legislature of that state submitted this proposition to the electorate of the most intelligent commonwealth in the Union, if we are to believe the confident assurances of the inhabitants of that commonwealth. The electorate of Massachusetts, after patiently listening to both sides, by a vote of three to one, consigned this amendment to the "demnition bow wows," where it properly belongs. The opposition carried every county, every judicial district, every congressional district, every legislative district, and every city in the state; since which time the complacent members of the Congress which voted to recommend it for ratification under the crack of the whip, the threats and entreaties of lobbyists and of classes, of groups, and of expectant bureaucrats, are now trying to explain to their constituents that they didn't know it was loaded. Of course, the movement still exhibits signs of life, just as did the beheaded terrapin whom an old Swede encountered one day. To an approaching stranger he said, "Look at that; his head is gone, and he is still alive. What does it mean?" And the stranger said, "Oh, the darn thing is dead, but it doesn't know it."
But my time is flying, so let me mention some of what I have called the high points of this discussion. At the outset, Mr. Lovejoy said that a sovereign nation or a sovereign government should be endowed with power to protect its own citizens. Certainly. We have forty-eight sovereign powers in this country, and each of them has the sovereign right to legislate as it sees fit upon this subject. The federal government never was sovereign, never was designed to be, and ought not to be sovereign, except as to those subjects which were specifically delegated to it for the common good. It is a government of limited powers, and the powers which were reserved to the states by the especial declaration of the tenth amendment include those which Mr. Lovejoy's amendment would transfer from them to the central authority. To do this, however, is radically and fundamentally to change both its character and purposes by reducing the states to the status of provinces, chiefly distinguishable from the general government and from each other by geographical boundaries.
What was the occasion of the formation of the general government? And what the pressing need for it? It was the chaotic condition of Colonial affairs. These colonies had just acquired their independence, and conditions material,