“If there is any matter upon which civilized countries have agreed …, it is the evil of premature and excessive child labor.” So said U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., in 1918, when Americans were waging a fierce battle over the employment of young children. More than a century later the argument rages again. In recent months 14 states have introduced or passed laws weakening labor protections for minors, even in notoriously dangerous industries, such as meatpacking. Nonenforcement of existing laws that limit the hours and types of work that can be performed by kids is also on the rise. This past year the number of minors illegally employed—including children as young as 13—increased by 37 percent.
Holmes's comments remind us that there's a long and baleful story behind contemporary efforts to bring back child labor. Although few, if any, of today's advocates of weakening child labor protections would admit it, the defense of child labor is historically linked to social Darwinist beliefs that people are not equal and do not deserve an equal chance in life.
Holmes made his comment in a 1918 dissent to a Supreme Court decision that overturned a federal statute meant to limit child labor. Child labor was commonplace back then: according to one estimate, between 1890 and 1910, nearly 20 percent of all American children 10 to 15 years old worked in industrial settings. Some forms of work—such as cleaning narrow chimneys or crawling under machinery to recover lost objects or bits of fabric—were considered particularly suitable for children as young as five or six because of their small stature.
The overall trend—in “civilized” nations, as Holmes put it—was toward keeping children out of the workplace to enable them to go to school and improve their lives through education. In the U.S., this was mostly achieved through state law. But manufacturers criticized these laws as creating an unlevel playing field: to them, any state limit on child labor would disadvantage them relative to competitors in states without such limits. One manufacturer in South Carolina even stated that a proposed bill prohibiting the employment of children under age 12 could be called “a bill to discourage manufacturing in South Carolina.” To level the playing field, Congress passed two federal laws. When the Supreme Court overturned these laws on constitutional grounds, it was an obvious choice to amend the Constitution.
It is a conspicuously forgotten piece of American history that in 1924 the U.S. Congress passed the Child Labor Amendment, which granted Congress the power to “limit, regulate, and prohibit the labor of persons” under age 18. Had it been ratified by the states, it would have been the 20th Amendment to the Constitution. But business leaders mobilized against it.
The business effort relied heavily on denying the facts of child labor and propagating false, misleading and disingenuous arguments. One example comes from the industry newsletter Southern Textile Bulletin, whose editor took out advertisements claiming that the proposed amendment would hinder boys from doing farm work and girls from doing the dishes. This was misleading because the amendment simply authorized Congress to pass a federal law (but did not stipulate what would be in it); existing state laws had almost always exempted agricultural labor; and even the most zealous reformers had no objection to household chores.
Another example came from the National Association of Manufacturers (NAM)—at the time the nation's largest trade association—which insisted (without evidence) that “the nature and extent of the work done by children is grossly exaggerated.” The group claimed the amendment was a power grab to enable Congress to control the “labor and education of all persons under 18 to an extent not now possessed by any State of the Union.” Both these claims were false. The facts of child labor were well documented, and the amendment said nothing about education.
NAM also made a slippery slope argument: it claimed that in time the government would use the amendment to expand its power even more. And it engaged in red-baiting by insisting that the proposed 20th Amendment was “socialistic in its origin, philosophy and associations.” One pamphlet issued by NAM noted that the 1922 Fourth Congress of the Communist International had declared its intent to abolish all wage labor by children under age 18, suggesting that if communists wanted to eliminate child labor, then Americans who advocated the same must be communists, too. Senator William H. King of Utah declared the proposed amendment to be a “communistic, bolshevistick scheme.”
These claims were rooted in noxious ideas about inequality and opportunity. Many defenders of child labor were social Darwinists who believed people were inherently unequal. They associated child labor laws with socialism because the laws enforced assumptions of equality they rejected—such as that all children should go to school. They argued that the “natural place” of some children (like some adults) was in factories. Typically this referred to children of immigrants, particularly Catholic and Jewish immigrants from southern and eastern Europe.
Child labor was finally brought under control in 1938, when Congress passed (and the Supreme Court upheld) the Fair Labor Standards Act, which, among other things, banned child labor in hazardous trades, including most jobs in coal mining, forest firefighting and meatpacking. The legislation, combined with improved adult wages (so families felt less need to send kids to work) and increased compulsory school attendance, decreased child labor in industrial settings dramatically.
Today we are seeing many old arguments being revived to reverse a century of social progress. Child labor is a case in point. Advocates of weakened protections for children claim that the states—not the federal government—should decide; that attempts to regulate the workplace represent a federal power grab; and that the defenders of strict limits on child labor are socialists trying to (unreasonably) level the playing field. Underlying these arguments is the same ideological framework that prevailed in the 1920s: an antigovernment ideology pushed by business leaders who resent government regulation broadly and want the “freedom” to pollute the atmosphere, operate dangerous workplaces and rob immigrant children of their chance to succeed in school and beyond.