Tuesday, August 25, 2009

Sawyer on the First Federal Child Labor Bill

Logan Sawyer is a University of Virginia-educated lawyer who has been dissertating in history there under Charles McCurdy. For the past year he has been a Future Law Scholar at Georgetown Law, where I've had the fun of kibbitzing as he works out for himself how to take seriously both constitutional doctrine and the political context in which it is asserted. An installment is now up on SSRN: The First Child Labor Bill and the Politics of Federalism in the Lochner Era. Here's the abstract:
By examining the defeat of the first federal child labor bill in 1907, the attached article challenges the long-standing explanation for the failure of federal child labor reform in the Lochner Era as well as the reductionist understanding of the relationship between law and politics it supports. That traditional explanation, often associated with Hammer v. Dagenhart, attributes the failure of federal child labor reform to the Supreme Court’s federalism doctrines and portrays those doctrines as crude camouflage for a desire to protect business interests.

This paper, in contrast, argues that the Republicans who controlled Congress did not reject the bill because they were simple shills for manufacturing interests or because they were laissez-faire ideologues. In fact, the same Republican controlled Congress that rejected the first child labor bill also passed some of the most important regulatory legislation of the Progressive Era. They rejected the bill because they feared the constitutional argument used to support it would destroy the coalition of labor and capital that was crucial to their political success, a conclusion they reached because they properly understood a surprising relationship between antitrust enforcement, liberty of contract, and commerce clause doctrine.

This paper thus provides a clear example of how politicians use constitutional arguments in their constant quest for political advantage. But it emphasizes how politicians can be constrained by the same political and legal structures that empower them.
Image credit: Albert J. Beveridge