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Logan Everett Sawyer III, Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming) available at SSRN.

The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.

Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking.

The statute invalidated in Hammer forbade the interstate shipment of goods produced in factories employing children under the age of sixteen. In Champion v. Ames, 188 U.S. 31 (1903), a closely divided Court upheld a federal law banning the interstate shipment of lottery tickets. The drafters of the federal child labor law believed their legislation could be upheld on the same basis. But the Hammer Court ruled that there is a distinction between laws restricting the shipment of “harmful” goods such as lottery tickets and alcohol, and “harmless” products, including most of those produced in factories employing child labor. The former fell within the scope of Congress’ power to regulate interstate commerce; the latter did not. Critics have long denounced this distinction as arbitrary, unprincipled, and motivated by an ideological commitment to “laissez faire.”

Sawyer investigates in detail the career of Philander Chase Knox, the prominent lawyer who developed the legal reasoning later adopted in Hammer. A former Attorney General and leading adviser to President Theodore Roosevelt, Knox was no advocate of laissez-faire, and in fact supported extensive government regulation – including federal regulation – of the economy. He was, among other things, a longtime advocate of strong federal antitrust laws and food inspection laws.

Sawyer shows that Knox advocated the distinction between regulation of interstate transportation of “harmful” and “harmless” items as a way of preventing Congress from seizing unlimited regulatory authority, and to protect the autonomy of state governments.  He also demonstrates that by 1918, the harmless item doctrine was already supported by a long line of judicial and legislative precedent.

Knox’s reasons for denying that the federal government had the authority to ban the interstate shipment of goods of any kind for any reason were not unreasonable. Otherwise, Congress could use this power as leverage to regulate almost any aspect of society. Even some contemporary critics of Hammer admitted as much. Harvard law professor Thomas Reed Powell suggested that “[n]o one would have the hardihood to argue in favor of the constitutionality of congressional prohibition of interstate transportation of all goods from states in which divorce is allowed or of all persons who beat their wives. Such [federal laws]… would wield the commerce power as a club to control local enterprises in no way dependent upon interstate commerce.” Both Knox and Powell claimed that the Commerce Clause should not be interpreted to allow Congress to use bans on interstate in transportation as a lever for regulating any activity it wished. They differed, however, on where the appropriate line should be drawn.

Sawyer might have strengthened his revisionist project by noting that, just as the legal case against Hammer is not as rock-solid as usually believed, the real-world effects of Hammer were also not as dire as conventional wisdom assumes. By the time Hammer was explicitly overruled in 1941, all forty-eight states had enacted laws banning child labor for children under the age of 14, and some banned it for children up to the age of 16, like the federal law invalidated in Hammer. This calls into question the longstanding belief that state regulation of child labor was impossible because of a “race to the bottom.” The supposedly “laissez-faire” Court unanimously upheld the constitutionality of state child labor regulations in Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913) just five years before Hammer. This left states free to adopt their own child labor restrictions. It also suggests that Hammer was not the result of judicial hostility to child labor regulation as such.

It is also unclear that the failure of some states to ban labor by children aged 14 to 16 was necessarily harmful. By modern standards, the United States in 1918 was a very poor society. In such an economy, banning child labor might deprive many poor families of much-needed income and leave children worse off than they would be otherwise – especially when one considers that many children barred from working in factories would likely end up working at home or on farms for less money and sometimes under more dangerous conditions. Indeed, farm labor by children was not banned under the law struck down by the Court in Hammer, and remains legal to this day.

Sawyer’s work certainly does not definitively prove that Hammer was correctly decided. Nor does that seem to be his intention. The text of the Commerce Clause does not distinguish between federal regulation of interstate trade in harmful as opposed to harmless goods. One may also believe, as many scholars do, that the Court should broadly defer to Congress on virtually all federalism issues Sawyer’s article also does not address the question of whether Hammer was consistent with the original meaning of the Clause, as opposed to legal and legislative precedent circa 1918. But Sawyer does effectively undermine the traditional view that this was one of the Court’s worst-ever decisions, a ruling lacking any legitimate basis in legal reasoning.

Sawyer’s article is part of a larger recent trend of academic reconsideration of the Lochner-era Supreme Court, most notably David Bernstein’s Rehabilitating Lochner. This growing revisionist literature finds that the Court’s decisions were both more defensible and less uniformly “laissez faire” than traditionally believed. This weakens claims that the decisions of that era – and by extension all judicial efforts to protect economic liberties and enforce limits on congressional power – are inherently suspect. It also undercuts the view that it is impossible for courts to engage in principled judicial review of “economic” legislation without enforcing total laissez faire.

Sawyer’s article will not be the last word on Hammer. But it goes a long way towards proving that a debate on this issue is actually necessary.  Thanks in part to Sawyer’s research, Hammer can no longer be dismissed as obviously indefensible.

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Cite as: Ilya Somin, Federalism and Child Labor Revisited, JOTWELL (June 18, 2012) (reviewing Logan Everett Sawyer III, Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming) available at SSRN),