Following the 1906 midterm elections, Indiana Senator Albert Beveridge was excited to return to Washington to introduce a bill that would prohibit child labor in the nation's factories, mines, and mills. He hoped the bill would curtail the unpopular practice and help rebrand his Republican Party as the nation's progressive party. The Party's old guard, however, proved uncooperative. Recognizing the unpopularity of child labor, they fought the bill on constitutional grounds and challenged Beveridge with a parade of horribles. If Congress could constitutionally regulate child labor, they asked, could it not also regulate the hours or wages of adults? Could it not prevent a man from joining a labor union? Or require it? One would have expected Beveridge—who opposed such regulations—to blunt that criticism with some legal distinction. Instead, he embraced it. Would Beveridge go so far as to claim that Congress could prohibit the interstate shipment of cotton picked by children, asked one Senator. “Yes,” Beveridge retorted, “or [by] a redheaded girl.”Footnote 1
Historians have noted this episode, but hurried past it, seeing little more than a bill that lacked popular support.Footnote 2 Beveridge's insistence on the constitutionality of his bill, however, is more than that. It is a case study of constitutional politics in the early twentieth century. The role of constitutional argument in Congress is denigrated by broader studies of Progressive Era legislative and party politics as well as narrower histories of child labor regulation. They generally ignore it or portray it as camouflage for “real” political motivations.Footnote 3 That framework, however, cannot explain why Beveridge respected the integrity of his constitutional argument when doing so undermined his political goals. His behavior is better understood as a striking example of the independent effect of constitutionalism on Progressive Era legislative and party politics.
Beveridge was no prisoner of Supreme Court doctrine. He knew passing federal child labor legislation would require him to redefine the reach of Congress's power to regulate interstate commerce and, he manipulated accepted sources of constitutional law—most importantly the Supreme Court's recent decision in the Lottery Case, Champion v. Ames—to produce an original argument that extended federal power far beyond traditional boundaries.Footnote 4 However, his willingness to re-characterize well-established principles of constitutional federalism did not extend to another legal principle that was too clear to ignore and to important to popular regulatory programs to reject.
That principle has been noted by several scholars, but its implications for legislative and party politics have been ignored.Footnote 5 It was developed in a series of decisions interpreting the Sherman Antitrust Act, in which the Supreme Court established a unique relationship between the right of liberty of contract and Congress's commerce power. Generally, a legitimate regulation of interstate commerce would still be unconstitutional if it violated a right protected by the Constitution; a legitimate regulation of interstate commerce would, nevertheless, be unconstitutional, for example, if it took private property without due compensation. In 1907, however, a legitimate regulation of interstate commerce could not, by definition, violate liberty of contract.
That principle was also of crucial political importance: it ensured that liberty of contract did not interfere with antitrust prosecutions, the most popular and important regulatory program of the time. As a result, Beveridge never questioned the principle and it drove him to accept the parade of horribles that was the primary argument against his bill. Beveridge's behavior thus contradicts the simple view that politics determined legal interpretation, and reveals, instead, a context-dependent and reciprocal relationship between the period's politics and its constitutional law; a relationship that encouraged politicians to play an active role in developing constitutional meaning.
I. Beveridge, the Republican Party, and the Politics of Federal Child Labor Reform
Beveridge was excited about federal child labor regulation for a variety of reasons. He seemed to genuinely oppose the practice on moral and practical grounds,Footnote 6 and personal ambition also played an important role. When he learned that Henry Cabot Lodge, the Republican senator from Massachusetts, also planned to introduce a child labor bill, he responded with anger.Footnote 7 “Lord! but I am mad, angry, hot, frothing, etc.,” he wrote the editor of the Saturday Evening Post. “[H]ere comes that unspeakable Lodge trotting down to Washington and announced last Wednesday that he is going to introduce a national bill to stop child labor….” “You must now,” he urged him, “have that editorial on ‘Pass the Beveridge Bill.’”Footnote 8 However, Beveridge's private correspondence indicates that he was most interested in the bill's potential to help transform the Republican Party into a politically dominant progressive party.
Beveridge introduced his bill when there was a significant debate over the future of the Republican Party. By 1906, the Party was used to success. Over the previous 20 years, it had enjoyed an average advantage of 18 seats in the Senate and 64 in the House. Over the same time, it had also won every presidential election by increasing margins, culminating with Theodore Roosevelt's 1904 defeat of Alton Parker by almost 200 electoral and 2,500,000 popular votes. The party built that success with a discourse of shared interests and an economic program that wedded working class Northerners and Westerners to Northern industrialists with high tariffs that protected industrial jobs and profits, supported prices for Western agricultural products, and funded generous pensions for Union Civil War veterans.Footnote 9
That winning coalition, however, came under pressure as increasing industrialization, urbanization, and immigration undermined faith in the shared interests of capital and labor and put economic regulation at the center of political debate.Footnote 10 When a series of exposés in 1906 convinced much of the public that business interests had systematically corrupted politics, Congress responded with a remarkable wave of progressive legislation that drew the Republican Party's intra-party tensions into plain view.Footnote 11 That legislation included the Hepburn Act, which allowed the federal government to set railroad rates, as well as the Pure Food and Drug Act and Meat Inspection Amendments, two iconic pieces of legislation made famous by Upton Sinclair's The Jungle. The first Federal Employers Liability Act, which made it easier for railroad workers to recover in tort also made it through a Congress that even at the time was recognized as history making.Footnote 12 The Republican Party's congressional leadership was largely ambivalent about that legislation. Led by House Speaker Joe Cannon and Senate Majority Leader Nelson Aldrich, the Republican Party's “old guard” preferred traditional Republican issues and supported the progressive legislation of 1906 only under pressure.Footnote 13 The driving force for the legislation came from an alliance of Democrats and progressive Republicans committed to the active use of government power. Robert LaFollette and William Borah were among their leaders, and by 1906 Albert Beveridge had joined them.Footnote 14
Beveridge began his career as a traditional Republican.Footnote 15 He praised the Party for saving the Union; decried the minting of silver; argued that the tariff advanced the economic interests of laborers, farmers, and businesses alike; and joined the call for American expansion abroad.Footnote 16 After his 1898 election to the Senate, his loyalty and obvious talents earned him rapid advancement. Within 4 years he had joined the Republican Steering Committee, which directed the Republican caucus and thus largely controlled the Senate's agenda.Footnote 17 But after winning his second term in 1904, Beveridge split with the Senate's old guard leadership.Footnote 18
Beveridge was no radical. During the fight for child labor regulation he continued to call himself a conservative and an “active defender of honestly-gotten wealth,”Footnote 19 but increased union membership, a growing socialist party, and revelations of political corruption convinced him that government intervention was necessary.Footnote 20 “We must turn,” he told a Republican Party rally in 1906, “to these new social and economic problems which have to do with the daily lives and happiness of human beings and which press for answer; questions that involve the righteousness of American business, a juster distribution of wealth . . . the physical, mental, moral upbuilding of all the workers in factory and on farm . . . [and] the public control of great public businesses.”Footnote 21
The first session of the Fifty-ninth Congress in 1906 made Beveridge's shift clear. In the Hepburn Act debates, he bucked the Republican Senate leadership to fight for narrow court review of railroad rate decisions.Footnote 22 He played a crucial role in bringing the Pure Food and Drug Act to a vote in the Senate, then drafted the Meat Inspection Amendments, led the floor fight, and helped craft the final compromise.Footnote 23 Indicating his feelings toward federal power, Beveridge bragged his Meat Inspection Amendments were “the most perfect meat inspection measure in the world” and “the most pronounced extension of federal power in every direction ever enacted.”Footnote 24
The 1906 elections pushed Beveridge farther away from the Republican Party leadership. Whereas the old guard urged the party to “stand pat” on the accomplishments of the Fifty-ninth Congress and return to a traditional Republican platform, Beveridge pushed to remake the Party in the image of Theodore Roosevelt. The country, Beveridge wrote to Roosevelt, was “sick and tired of that false, reactionary and foolish motto: ‘Let well enough alone.’” The old guard “entirely fail[] to comprehend the great movement of the American millions which you are leading.” “You are the issue,” Beveridge told Roosevelt, “whoever fights on that issue will win; whoever fights on some other issue will lose.”Footnote 25
Roosevelt described the vision Beveridge had in mind in a widely publicized speech in Harrisburg, Pennsylvania before the 1906 election. There, Roosevelt called for aggressive use of federal power—federal income tax, federal incorporation of interstate corporations, national marriage laws, campaign regulation, and a postal savings bank—and criticized those who erected constitutional barriers to such programs.Footnote 26 The “ingenious legal advisers of the holders of vast corporate wealth,” Roosevelt argued, made the Constitution “the excuse for government paralysis,” “a justification for refusing to attempt the remedy of evil instead of as the source of vital power necessary for the existence of a mighty and ever-growing nation.” The “narrow construction of the powers of the National Government,” Roosevelt said, was “the chief bulwark of those great moneyed interests which oppose and dread any attempt to place them under efficient government control.”Footnote 27
In that context, Beveridge's discovery on the campaign trail in 1906 was exciting indeed. Stumping for his Republican colleagues, Beveridge had expected support for his proposals for an extension of his Meat Inspection Amendments, a federal inheritance tax, tariff revision, direct primaries, and tighter antitrust regulation, but he quickly found that the loudest cheers were for a new proposal: the federal regulation of child labor. “[F]rom Maine to Nebraska,” he wrote Roosevelt, “people cheered national regulation of child labor more than any other subject.”Footnote 28 Those cheers showed Beveridge a way to advance his career, reshape the Republican Party, and ensure his Party's control of the national government.
Upon his return to Washington, Beveridge began recruiting potential allies by emphasizing the political benefits a child labor law would provide the Republican Party. The Party's losses in the 1906 election, he wrote one Republican congressman, were the result of doubts that it truly supported progressive legislation. A federal child labor law could help correct that problem.Footnote 29 The bill, he wrote President Roosevelt, used the interstate commerce powers of Congress to cure nationwide evils, just as Roosevelt had suggested in his “great Harrisburg speech.”Footnote 30 We must, he wrote Roosevelt's private secretary, “beat [the Democrats] to the goal and score a touchdown before they begin to play.”Footnote 31
Despite these advantages, however, Beveridge knew he would have to provide a convincing constitutional argument to support his bill. States were widely understood to be responsible for both labor and child welfare regulations, and Beveridge had seen constitutional arguments nearly sink the Pure Food and Drug Act, his Meat Inspection Amendments, and the Hepburn Act just months earlier.Footnote 32 He therefore worked assiduously to develop not only winning political arguments but winning constitutional arguments as well.
II. Federalism and Federal Child Labor Legislation
Beveridge was well positioned to generate those constitutional arguments. He was a creative and thoughtful lawyer and generated a sophisticated set of claims that both supported his bill and undermined well-established principles of constitutional federalism. He had begun his legal career with a successful Indianapolis firm that included a former United States Senator,Footnote 33 then quickly developed a practice that dealt with high profile political and constitutional issues. He had taken part in a dramatic contest over the lieutenant governorship of Indiana, and the arguments he developed in a case concerning the constitutionality of state taxes on insurance policies were largely adopted by the United States Supreme Court.Footnote 34
Beveridge also used constitutional argument in his political speeches. Especially noteworthy is a speech he gave in 1898 as he campaigned for the United States Senate. It anticipated the arguments of Roosevelt's Harrisburg speech and revealed Beveridge's nationalistic and teleological understanding of constitutional development. For Beveridge, the Constitution's keystone was the broad goals of the Preamble. Increased federal power did not distort the Constitution; it fulfilled its promise because it reflected the growing nationalism of the American people. “[M]ere lawyer[s] and formalist[s],” Beveridge said, had challenged the Constitution's potential for growth, but “jurists and statesmen” had answered. Following John Marshall, whose career Beveridge would later celebrate in his noted biography, the jurists and statesmen realized that “whatever may be essential to the development of [American] Nationality lies latent in [the Constitution's] general terms, awaiting the people's necessity to call it into action.” They properly rejected “doctrinaires” such as Jefferson and Madison, to discover “unexpected powers and duties in the National government.”Footnote 35 That process had led to the use of federal troops to break the Pullman strike, a policy that followed Washington's repression of the Whiskey Rebellion and Andrew Jackson's rejection of the Nullifiers.Footnote 36
Beveridge knew his legal experience would be necessary to defend his child labor bill, because the bill challenged the system of dual federalism, a vision of federal and state authority that by 1900 had a decades-long legal pedigree. Originating in opinions of the Marshall Court and institutionalized during Taney's chief justiceship, dual federalism was the dominant view of the relationship between the federal and state government throughout the nineteenth century. Where Beveridge emphasized the Preamble's broad goals, dual federalism stressed Article I's enumeration of powers and the Tenth Amendment. It understood those provisions to imply that state and federal authority operated on constitutionally defined spheres of sovereign authority with little overlap. The federal government's sphere included interstate commerce and the other subjects outlined in Article I. The states retained control over powers not delegated, including, most importantly, the “police power,” a vaguely defined authority to promote public health, safety, morality, and the general welfare.Footnote 37 The Supreme Court played umpire, using its expertise to guard the boundaries of state and federal authority. It examined a limited variety of evidence, including the statute itself, and, later, facts susceptible to judicial notice, to determine the purpose of the statute, which determined whether the statute was an exercise of federal or state power.Footnote 38
Overlap between federal and state authority was rare. Some minor subjects could be regulated by the federal commerce power and the states’ police power, including harbor and quarantine regulations, but overlap was rare, because the scope of the federal police power was tightly restricted.Footnote 39 The federal government could only exercise a police power in geographic areas where there was no existing state authority: the Territories and the District of Columbia. Chief Justice Salmon Chase made this quite clear in striking down a federal ban on certain types of heating oil in 1869:
Standing by itself, [the heating oil ban] is plainly a regulation of police . . . As a police regulation, relating only to the internal trade of a state, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation… This has been so frequently declared by this court, results so obviously from the terms of the Constitution, and has been so fully explained and supported on former occasions, that we think it unnecessary to enter again upon the discussion.Footnote 40
This limit on the federal police power suggested that the federal commerce power was restricted to improving the efficiency of interstate trade and protecting it from state interference. That view was supported by the historical justification for the federal commerce power and the lack of any affirmative exercises of the commerce power for most of the nineteenth century.Footnote 41
Dual federalism, therefore, suggested that the protection of the welfare of children was beyond federal competence, but Beveridge believed that he had found an answer. “I have worked it out very carefully,” he wrote an ally.Footnote 42 The federal government cannot, “of course, pass a federal statute directly affecting the mines and factories—that is the province of the States.”Footnote 43 But Congress could use its commerce power to prevent interstate carriers from accepting or transporting any products whenever that prohibition served the national interest. It could, therefore, use its commerce power to exercise a kind of federal police power outside the federal government's exclusive territorial jurisdictions.
He justified this conclusion by arguing that the federal government's authority to promote health, safety, morality, and the general welfare where it exercised exclusive territorial jurisdiction was but one instance of a larger principle: that the federal government could pursue such purposes, or, colloquially, exercise a federal police power, in any area of exclusive federal authority. Because Congress had exclusive authority over interstate commerce and because the regulation of commerce could include the prohibition of particular goods, Congress had “absolute and unlimited power to prevent carriers of interstate commerce from accepting or transporting the products of factories and mines employing child labor.”Footnote 44 His child labor bill was based on that theory. It prohibited common carriers from shipping in interstate commerce the products of any factory or mine without first receiving an affidavit attesting that the business employed no child younger than 14 years of age. It penalized shipping goods without an affidavit and filing false affidavits.Footnote 45
Beveridge, however, did not rest on such generalities. He generated a sophisticated set of legal arguments that within a decade supported the passage of the Keating–Owen Child Labor Act in Congress and anticipated Justice Oliver Wendell Holmes's famous dissent in Hammer v. Dagenhart. Footnote 46 The Constitution, Beveridge noted, gave Congress power to regulate foreign commerce, commerce between the states, and commerce with the Indian tribes in a single clause. That suggested that Congress had identical authority over each category. If Congress could prohibit the importation of foreign goods for police power purposes, it could also prohibit the movement of goods in interstate commerce, to promote the welfare of the nation's children. Furthermore, before the ratification of the Constitution, states could protect health, safety, or the general welfare by preventing the importation of particular goods, and the Constitution transferred all of the states’ power over interstate commerce to the federal government. That delegation, therefore, must have included the power to prohibit the interstate shipment of goods in order to advance purposes associated with the police power. Beveridge also supported his position with legislative precedents: in 1882, Congress prohibited the interstate shipment of nitroglycerine; in 1902, falsely labeled dairy products; in 1903, cattle without a federal certificate; and in 1905 quarantined cattle.Footnote 47
Beveridge's most important authority, however, was Champion v. Ames, a 1903 Supreme Court decision popularly known as the “Lottery Case”.Footnote 48 The decision, which Beveridge called “one of the six greatest opinions in the whole history of jurisprudence,” upheld an 1895 law that tried to stop interstate lotteries by prohibiting private carriers from moving lottery tickets in interstate commerce.Footnote 49 Justice Harlan's opinion for a narrow majority of five held that Congress could exercise its commerce authority to pursue non-economic ends and that prohibition of lottery tickets in interstate commerce was an appropriate means to stop the evil created by lotteries. Harlan seemed driven by a concern that only Congress could address the evil produced by the interstate shipment of lottery tickets. The Court's dormant Commerce Clause doctrine put regulation of interstate commerce beyond the power of the states, Harlan noted. States could prohibit the purchase or sale of alcohol, but they could not prohibit the shipment of alcohol to private parties within their boundaries. Likewise, they could prohibit lotteries within their territory, but not the shipment of lottery tickets into it. Because Harlan believed the Constitution would not leave substantive evils beyond the power of the government, he concluded that Congress could use its authority to address the evils of lotteries in its areas of responsibility just as the states could in the areas entrusted to their care. “We should hesitate long,” wrote Harlan, “before adjudging that an evil of such appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end.”Footnote 50
How far this power to prohibit extended, however, remained unclear. It “would not be difficult to imagine legislation” that would “infringe rights secured or protected by [the Constitution],” wrote Harlan. But he declined to draw any lines. “The present case,” he felt, “does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the states.”Footnote 51 Beveridge, nevertheless, believed the decision sufficient to support his child labor bill. If Congress could prohibit the interstate movement of lottery tickets to protect the morality of the nation, it could prohibit the interstate movement of goods produced by children to protect the welfare of the nation's future citizens.Footnote 52 The decision “completely covers every point,” he wrote President Roosevelt. Its holding was “decisive.”Footnote 53
III. Constitutional Argument in Congress
In late 1906, Beveridge believed that both public opinion and the law were on his side. “No constitutional argument, plausible or otherwise, can be made against” the bill, Beveridge wrote Roosevelt.Footnote 54 “By thunder,” he wrote a supporter, “I begin to think I will get the bill through next session and possibly, though not probably, this session. It is sure the most popular reform now before the people.”Footnote 55 But he quickly learned that he had underestimated the strength of the opposition. The source of that opposition has conventionally been attributed to the self-interest of Northern businesses that employed many children, traditional Southern opposition to federal power, and the ambivalence of the labor movement and President Roosevelt.Footnote 56 This explanation may be incomplete, but whatever their motivation, it is clear Beveridge's old guard opponents publicly justified their opposition on constitutional grounds.Footnote 57 Their opposition was most effective in the House. Beveridge failed to convince Massachusetts Congressman Butler Ames to introduce a companion child labor bill in the House, but found a willing partner in Herbert Parsons of New York.Footnote 58 The Republican leadership of the House responded by immediately sending Parsons’ bill to the Judiciary Committee, which unanimously reported that the bill was unconstitutional. “Under the police power,” reported the Committee, “the State can not regulate interstate commerce; and under the commerce clause of the Constitution, Congress can not interfere with the lives, health, property, good order, or morals of the people, or anything in the opinion of the legislature for the good of the State and its citizens.”Footnote 59
In the Senate, Republican leaders hoped to follow the lead of the lower chamber, but Beveridge took advantage of more flexible rules to force the issue. Beveridge's bill was first sent to the Committee on Education and Labor,Footnote 60 but Republican Senator John Spooner of Wisconsin soon introduced a resolution asking the Senate Judiciary Committee to consider whether Congress could prohibit the transportation of commodities in interstate commerce because they were produced by child labor.Footnote 61 Beveridge, however, did not wait for the report. Three days into 1907 he introduced an amendment to a pending child labor bill for the District of Columbia that had earlier passed the House, and informed his colleagues that he intended to “submit some remarks.”Footnote 62 When Beveridge took the floor on January 23, he used the opportunity to introduce his national bill as an amendment to the District of Columbia bill. That strategy allowed him to force debate. And debate he had. Over 3 days, Beveridge met fierce opposition from some of his own party's most powerful and legally adept senators, including John Spooner, Nelson Aldrich, Charles Fulton of Oregon, Porter McCumber of North Dakota, and Philander Knox of Pennsylvania.Footnote 63 That assembly suggested the Republican leadership took Beveridge's arguments seriously. All but Aldrich were lawyers, and Spooner and Knox had national reputations, but even more important was the combined presence of Spooner and Aldrich. Those Senators, along with William Allison of Iowa and Eugene Hale of Maine, controlled the Republican caucus and, therefore, the Senate.Footnote 64 Bills rarely passed the Senate without their approval.Footnote 65
Beveridge's Democratic opponents were less august, but still important figures. Benjamin Tillman of South Carolina was a clear opponent of child labor and a powerful figure within the Democratic Caucus. He was joined by Senators Rayner of Maryland, Overman of North Carolina, Carmack of Tennessee, and Bacon of Georgia. The Democrats, other than Tillman, were all lawyers, but they lacked the talent for debate or the intellectual precision of their Republican colleagues.
These Senators challenged the Beveridge Bill with arguments that had originally been used to support the Pure Food and Drug Act and Beveridge's own meat inspection amendments. Those arguments were outlined systematically in 1907 by Philander Knox, then a Senator, but formerly Roosevelt's Attorney General and a fine lawyer. Knox claimed that Congress could prohibit the interstate shipment of goods only when that prohibition had “for its real object the regulation of interstate commerce and not something dehors the Federal power.”Footnote 66 That meant for him that Congress could only prohibit the interstate transportation of articles likely to harm commerce or that were themselves intrinsically harmful. The interstate movement of articles unlikely to harm interstate commerce or “in themselves innocuous” could not be prohibited.Footnote 67
Knox seems to have developed these rules by comparing the ends Congress could pursue under its commerce power with the means it employed. If an article of commerce was a threat to interstate commerce itself—such as an explosive or a trust-made good that could choke off the channels of commerce—then prohibiting its movement fit well with the end of regulating interstate commerce. Everyone accepted that a law protecting the safety and efficiency of interstate commerce was a “regulation” of that commerce. His focus on the intrinsic nature of the article seems to rest on a similar analysis. If an article was itself immoral, unhealthy, or unsafe, it was then likely to cause real harm in the receiving state that the state itself could not prevent, as a consequence of the Supreme Court's dormant commerce clause doctrine. Prohibiting its interstate shipment, therefore, fit well with the end of regulating interstate commerce. If, however, the article neither threatened interstate commerce nor was itself intrinsically harmful, then to Knox it seemed a poor means of regulating interstate commerce, which suggested that the law was an attempt to use the commerce power to regulate a subject reserved for state authority.
That constitutional argument was the basis for the opposition to Beveridge's bill. Beveridge argued that the Lottery Case demonstrated that Congress's power over interstate commerce was just as broad as its power over foreign commerce, that Congress could prohibit the interstate shipment of goods for any national purpose, and that the character of an article was irrelevant. His Republican colleagues contradicted each point. The Lottery Case was decided by a closely divided Court, Spooner noted, and both Spooner and Aldrich argued that it was more limited than Beveridge had suggested.Footnote 68 Aldrich and Knox argued that Congress may, indeed, have different authority over foreign and interstate commerce, because the country could have an inherent power over foreign commerce that it lacked over interstate commerce.Footnote 69 Knox also reminded everyone that he had overseen the Lottery Case as attorney general. The government, he noted, had specifically argued that Congress's power over interstate commerce was the same as its power over foreign commerce, but the Court had declined to rule on that ground.Footnote 70
Spooner, joined by Senator Fulton, argued that the Lottery Case allowed Congress to prohibit interstate commerce only in “things that are deleterious to the people to whom they are shipped.”Footnote 71 Senator Fulton put it more forcefully, “does [Beveridge] not observe that the lottery case and the whisky case and all the cases cited have this element in them: The exclusion of the articles amounts to a regulation of commerce in that it withdraws from commerce things that are deleterious to the people to whom they are shipped?”Footnote 72 Does Beveridge's argument not mean, Spooner asked, that Congress's constitutional power to “regulate commerce for the purpose of keeping the channels of commerce free and unobstructed is prostituted into a construction which warrants the General Government itself to obstruct the channels of commerce?”Footnote 73 The Democrats made similar points.Footnote 74
Beveridge, however, could rebut most of these challenges. The “injurious nature of the thing prohibited,” he argued “has nothing to do with the power of Congress but only with the policy of Congress in exercising the power.”Footnote 75 Lottery tickets may be harmful, he admitted, but there was no such restriction on Congress's power over foreign commerce or commerce with the Indian tribes. And legislative precedent showed no such limit to Congress's power over interstate commerce. Nutritious but falsely labeled dairy products were not injurious articles, nor were healthy cattle that had been quarantined. Congress had prohibited the interstate shipment of gold and silver with “U.S.A” stamped on it. Certainly such a stamp did not make those metals injurious. Abuse of the commerce power, Beveridge endlessly repeated, should be stopped by the ballot box, not the courts.Footnote 76
One of his opponents’ arguments, however, caused Beveridge significant problems: the claim that the constitutional justification for his child labor bill would allow the federal government to regulate the working conditions of any American for virtually any reason, rational or irrational. This concern seems strange, because such regulations seem to clearly violate the “liberty of contract” that the Court had famously enforced 2 years earlier in Lochner v. New York.Footnote 77
During the late nineteenth and early twentieth century, the Court found in the Due Process Clauses of the Fourteenth Amendment an individual right to make business contracts, including the right to purchase and sell labor.Footnote 78 Laws that limited that liberty were permissible only if they were passed pursuant to what was known as the states' police power: the authority to promote the health, safety, morality, and general welfare of the public.Footnote 79 In Lochner, for example, a maximum hour law for bakers was understood by the Court to interfere with the bakers’ liberty of contract and was struck down because the majority found that the law was not an exercise of New York's police power. The law did not promote the health or general welfare of the public. Neither was the occupation of baking sufficiently dangerous to justify the state passing laws to protect the health of the bakers themselves. Because the Fifth Amendment includes a due process clause like the Fourteenth Amendment, it has been assumed that liberty of contract in the early twentieth century would have similarly prevented the federal government from using any of its enumerated powers to pass a maximum hour law or otherwise interfere with the employment relationship. A maximum hour law passed pursuant to Congress's commerce power, for example, would be struck down because it would have to conform to the requirements of the Fifth Amendment's Due Process Clause, which included the right to liberty of contract.
However, both the House and the Senate emphasized the possibility that liberty of contract could be bypassed if Beveridge's arguments were accepted. “[W]hat limit is there to the power?” asked Spooner, trotting out a series of unpleasant scenarios. Could Congress, he asked, prohibit the interstate shipment of goods produced by workers who labored more than 8 hours a day? Could it prohibit the interstate shipment of goods made by nonunion labor?Footnote 80 Aldrich asked the same question, “[is it] possible that Congress can constitutionally regulate the hours of labor in a State for humanitarian reasons?”Footnote 81 The House Report followed the same tack: it “is not extreme or ridiculous to say that it would be just as logical and correct to argue that Congress can regulate the age, color, sex, manner of dress, height, and size of employees and fix their hours of labor, as to contend that Congress can exercise jurisdiction over the subject of woman and child labor.”Footnote 82
Beveridge met this seemingly strange concern with a seemingly stranger response: he admitted his argument allowed Congress to do all those things and more. Congress had “the unquestioned power to exclude from interstate commerce any article which, in our judgment, is deleterious to the people of the United States, whether it be by reason of its unhealthfulness, . . . or whether it be by reason of a circumstance of its manufacture….”Footnote 83 “Certainly” Congress could prohibit all commerce among the states.Footnote 84 It could prohibit interstate transportation in goods made by laborers who worked more than 8 hours a day or who were not members of a union.Footnote 85 It could prohibit interstate transportation of goods produced by people over the age of 50.Footnote 86 “Will you ask me,” he exclaimed, “whether or not I think we have the power to prohibit the transportation in interstate commerce of the milk of a cow milked by a young lady eighteen years old? Undoubtedly we have the power . . .”Footnote 87
IV. Constitutional Principle and Legislative Strategy
Beveridge did not accept this list of unpleasant scenarios because he supported labor laws for adults. He opposed such laws. He believed that the 8 hour day should be established by negotiations between employers and employees, and supported only limited restrictions on labor injunctions.Footnote 88 He accepted the primary argument against his bill because he believed that rejecting it would do too much violence to a constitutional principle that was too clear to ignore, too important to undermine, and too popular to reject. Developed in a series of recent Supreme Court opinions that upheld some of the government's most important antitrust prosecutions, the principle was a linchpin of the most popular government policy of the period. It was the proposition that no legitimate regulation of interstate commerce could interfere with liberty of contract.
Because this principle has received scant attention in the scholarship of the period, the general assumption is that the “liberty of contract” that stopped New York from using its police power to pass a maximum hour law in Lochner also limited Congress's commerce power.Footnote 89 As a result, the old guard's parade of horribles appears to be little more than posturing. Prohibiting the interstate shipment of milk from a cow milked by 18-year-old girls seems a clear violation of the substantive due process of the Lochner era, as does a law that prohibited the interstate shipment of goods produced by men who worked more than 8 hours a day.
In 1907, however, the liberty of contract protected by the Fifth and Fourteenth Amendments’ Due Process Clauses did not limit legitimate regulations of interstate commerce. Or, as Progressive Era lawyers would have understood it, if a law was a legitimate regulation of commerce then it was not, by definition, a violation of liberty of contract. To be clear, the restrictions of the Fifth Amendment applied to Congress's exercise of its commerce power,Footnote 90 but the substantive scope of the right of liberty of contract was determined in part by the scope of Congress's commerce power: if a regulation was legitimate regulation of interstate commerce then it was not a violation of liberty of contract and, therefore, would not be struck down on due process grounds.Footnote 91
This relationship between the Commerce Clause and liberty of contract mirrored the relationship between liberty of contract and the states’ police powers. Liberty of contract was never absolute. State laws regularly interfered with individual contracts, but if the law was a legitimate police regulation—if it promoted health, safety, morality, or general welfare—then the interference was constitutional. Only regulations that went beyond such purposes were unconstitutional, such as regulations that took property from one person and passed it to another or that arbitrarily limited an adult male's contractual rights. Progressive Era judges understood themselves to be separating laws that served legitimate government ends from those that did not.Footnote 92
In 1907, the relationship between Congress's commerce power and liberty of contract had the same structure. Neither the federal government nor the states could pass regulations that pursued illegitimate ends. If a regulation of interstate commerce was legitimate, it meant that the rule did not interfere with state prerogatives, but crucially for Beveridge, it also meant that it did not improperly invade the private sphere. In this system, an unalterably private sphere still existed. Liberty of contract and other doctrines outlined its limits, but because the Constitution expressly gave the federal government the authority to regulate interstate commerce, such regulations did not invade that private sphere. Any legitimate regulation of interstate commerce, therefore, could not, by definition, interfere with liberty of contract.
The Supreme Court applied this structure to resolve its most important antitrust cases. In United States v. Trans-Missouri Freight Association, the Supreme Court adopted a “literalist” interpretation of the Sherman Act's prohibition on “every contract . . . in restraint of trade.”Footnote 93 That language, the Court held, meant what it said. It did not just prohibit contracts that unreasonably restrained trade, it prohibited all contracts that restrained trade,Footnote 94 but by holding that Congress could prohibit reasonable contracts, the Court's opinion suggested that the Sherman Act imperiled liberty of contract. The following year in United States v. Joint Traffic, a railroad accused of antitrust violations advanced that argument. “The right of the individual to make contracts regarding his own affairs,” argued the railroad, was guaranteed by the Fifth Amendment's Due Process Clause. Citing the decisions that established liberty of contract, the railroad argued that liberty of contract “can be limited only so far as may be requisite for the security or welfare of society—by the exercise of the police power.”Footnote 95 Because reasonable contracts in restraint of trade were not prejudicial to the security or welfare of society, it concluded, Congress lacked the authority to prohibit all contracts in restraint of trade.Footnote 96
The Court rejected the railroad's argument, holding that a legitimate regulation of interstate commerce could not, by definition, violate liberty of contract. “The power to regulate commerce,” admitted Justice Peckham, “does not carry with it the right to destroy or impair those limitations and guaranties which are also placed in the Constitution.” Those limitations included “the liberty of the citizen to pursue any livelihood or vocation, and for that purpose to enter into all contracts which might be proper, necessary, and essential to his carrying out those objects to a successful conclusion.” However, Peckham's admissions did not lead him to conclude that liberty of contract limited Congress's commerce power. Instead, he held the opposite: the scope of liberty of contract was limited by the scope of Congress's commerce power. A citizen, he explained,
may have the right to make a proper (that is, a lawful) contract, … [but the] question which arises here is whether the contract is a proper or lawful one, and we have not advanced a step towards its solution by saying that the citizen is protected by the fifth, or any other, amendment, in his right to make proper contracts to enable him to carry out his lawful purposes. . . . Notwithstanding the general liberty of contract which is possessed by the citizen under the constitution, we find that there are many kinds of contracts which, while not in themselves immoral or mala in se, may yet be prohibited by the legislation of the states, or, in certain cases, by congress. The question comes back whether the statute under review is a legitimate exercise of the power of congress over interstate commerce, and a valid regulation thereof.Footnote 97
This understanding also supported later antitrust cases. In 1899 in Addyston Pipe & Steel Co. v. United States, Peckham's opinion for a unanimous majority reinforced his position in Joint Traffic.Footnote 98 The Fifth Amendment's Due Process Clause, he wrote, did not stop Congress from prohibiting contracts in restraint of trade. “On the contrary,” he continued, “we think the provision regarding the liberty of the citizen is, to some extent, limited by the commerce clause of the Constitution…”Footnote 99
That principle remained true in 1907. That year, as Beveridge fought for his child labor bill, the United States applied the principle to defend the constitutionality of the Erdman Act. In United States v. Adair, a railroad challenged a provision of the Act that prohibited interstate railroads from firing employees who had joined a union on the grounds that it violated liberty of contract.Footnote 100 Citing Joint Traffic among other decisions, the government argued that the act could not violate liberty of contract because it was a legitimate regulation of interstate commerce. The act protected unionized workers in order to prevent strikes that could hamper interstate commerce. It was, therefore, a legitimate regulation of interstate commerce, which meant it did not violate of liberty of contract because “the right of individuals or corporations to make contracts and do business is at all times subservient to the power of Congress to regulate interstate commerce.”Footnote 101
The Court's 1908 decision to strike down the Erdman Act in Adair also respected the principle. Justice Harlan's majority opinion first established that the Act was a violation of liberty of contract.Footnote 102 It then noted the government's argument that a legitimate regulation of commerce could not be a violation of the Fifth Amendment, but rather than rejecting that argument by holding that freedom of contract constrained Congress's commerce power, Harlan denied that the provision of the Erdman Act at issue regulated interstate commerce.Footnote 103 The legal literature, including the Columbia and Yale Law Reviews, noted that Adair followed the principle. The opinion suggested that liberty of contract limited the commerce power, wrote the Columbia Law Review; however, “no one has a constitutional right to make contracts which are opposed to a definite public policy. None such are protected by the Bill of Rights.” The result, as demonstrated by Joint Traffic and Trans-Missouri Freight, was that “Congress may make police regulations with regard to those matters expressly entrusted to its care, even though incidentally it abrogate freedom of contract.”Footnote 104
The understanding that legitimate regulations of commerce could not violate liberty of contract had crucial implications for the debate over the Beveridge Bill. It meant that expanding the scope of Congress's commerce power expanded not just federal power but also government power more generally. It meant the senators and congressmen debating the Beveridge Bill properly understood the implications of Beveridge's constitutional argument. By expanding the purposes Congress could pursue with its commerce power, Beveridge's argument would justify more than the regulation of child labor. It would allow Congress to effectively control the terms of employment for any significant industry by denying the industry the ability to participate in interstate commerce unless it first met federal guidelines on hours, wages, or union labor.
This understanding of the interaction between liberty of contract and Congress's commerce power was not limited to the senators who debated the Beveridge Bill. The principle was an implicit assumption of the debate over the Beveridge Bill in the popular and legal press.Footnote 105 The Washington Post, for example, criticized Beveridge's constitutional argument because it would justify laws that prohibited the interstate shipment of goods produced by men who drank.Footnote 106 In the legal literature, Philander Knox, John W. Davis, and Henry Wade Rodgers—three lawyers of the first rank—rejected Beveridge's argument, but never challenged his assumption about the relationship between the commerce power and freedom of contract.Footnote 107 The supporters of Beveridge's argument, including lawyers such as William Jennings Bryan, did the same.Footnote 108 The only academics to support the constitutionality of a child labor law abandoned the commerce clause argument altogether. They generated arguments based on unenumerated powers that no one seems to have taken seriously.Footnote 109
The interest group most invested in a national child labor law—the National Child Labor Committee (NCLC)—also accepted the principle. Some members of the NCLC did oppose the Beveridge Bill, but the organization provided critical support for the bill that began before it was introduced and continued into the Sixtieth Congress.Footnote 110 The NCLC also had access to superb legal advice and experience fighting constitutional barriers to reform. Florence Kelley helped lead the NCLC and was herself a fine lawyer who was contemporaneously cooperating with Louis Brandeis in the fight for a minimum wage for women.Footnote 111 The executive committee included two other excellent lawyers, one of whom, Robert DeForest, authored the Supreme Court brief in Joint Traffic that had unsuccessfully argued liberty of contract limited the scope of Congress's commerce power.Footnote 112 DeForest and the other executive committee attorney opposed the Beveridge Bill on legal and strategic grounds,Footnote 113 but the NCLC understood the legal landscape. It nevertheless embraced Beveridge's constitutional theory even when it became clear that the theory was the primary target of the opposition.Footnote 114
On the third day of debate, Beveridge seems to have realized that his constitutional argument was causing serious problems, but he did not change or abandon it. He instead further emphasized the protections of the political process. Congress, he said, would never pass a law prohibiting the interstate shipment of goods made by men who worked more than 8 hours a day, or men who joined labor unions, or red-headed girls. The question of whether such laws were constitutional was, therefore, an “impossible question.”Footnote 115 That argument was, however, unavailing. After 3 days of debate, his bill disappeared. Debate was concluded without a vote and each time the bill came up, action was delayed.Footnote 116
In the Sixtieth Congress, Beveridge tried again, but despite his experience in the Fifty-ninth, he used the same constitutional argument to support his bill. In October of 1907, he wrote to Roosevelt, again trying to recruit him. His letter restated the constitutional arguments he had made on the Senate floor, and never denied that those arguments justified federal regulation of both child and adult labor.Footnote 117 Unsurprisingly, Beveridge's second bill met the same fate as his first: it died without a vote. That November, Beveridge lost his seat in the Senate and the fight for a federal child labor law continued without its most committed and powerful voice.
Conclusion
Beveridge's decision to accept the parade of horribles that was the central argument against his bill would be puzzling, if his constitutional arguments had merely reflected his political preferences. Beveridge believed that his child labor bill would help solve a serious national problem, boost his political career, and turn his Republican Party into a politically dominant progressive party. He nevertheless admitted that his constitutional theory implied that federal regulation of adult labor was constitutional. He admitted it even when it was clear it was the central argument against his bill, even though he opposed government regulation of the hours and wages of adult men, and even after he had had an opportunity to reassess his tactics between the Fifty-ninth and Sixtieth Congresses. It also seems clear that Beveridge's failure to challenge the main argument against his bill was not a result of a lack of legal acumen or nerve. He was an astute lawyer who used ambiguities in the Lottery Case to undermine long-established and pivotal principles of constitutional federalism. Accepting that constitutional argument in the Progressive Era was something more than obfuscation, however, can explain why Beveridge felt compelled to accept his opponents'series of unpleasant scenarios: because he was unwilling to undermine the integrity of the doctrinal connection between the Supreme Court's commerce clause and liberty of contract doctrines.
Beveridge respected that doctrinal connection, while undermining the much longer established principles of dual federalism, because the connection between liberty of contract and Congress's commerce power was too clear to ignore and too important to anti-trust regulation to reject. In 1907, few agreed with Beveridge's interpretation of how the Lottery Case altered Congress's authority over interstate commerce, but everyone agreed that the decision was important and had unclear implications. Justice Harlan's opinion itself admitted that the “whole subject is too important, and the questions suggested . . . too difficult of solution, to justify any attempt to lay down a rule for determining in advance the validity of every statute that may be enacted under the commerce clause.”Footnote 118 The leading Democratic lawyer in the Senate, Joseph Bailey of Texas, was willing to argue that the decision was flatly mistaken.Footnote 119 The unique relationship between liberty of contract and the commerce clause, however, was clear enough that everyone assumed it was true, and not one voice challenged it. Had Beveridge ignored it, he would have been thought a fool.
The principle was not just widely recognized, it was also a crucial support for antitrust regulation, then broadly viewed as the government's most important regulatory program.Footnote 120 Because the Supreme Court had developed that doctrinal relationship in order to reject the claim that liberty of contract limited the federal government's ability to challenge the trusts, any attempt to undermine it would seem unsettling if not irresponsible. Had Beveridge claimed that liberty of contract should be interpreted to limit Congress's authority to regulate interstate commerce, he would have raised a host of questions with serious implications but without clear answers. What would antitrust regulation look like under such a regime? Did such an argument mean that the government's great antitrust victories in United States v. Joint Traffic Association, United States v. Trans-Missouri Railway Association, Addyston Pipe and Steel Co. v. United States, and even Northern Securities Co. v. United States were wrong?Footnote 121 Such concerns explain why neither Beveridge nor any other senator, congressman, commentator, or interest group challenged the principle.
Accepting that principle was a significant admission for Beveridge. Substantive opposition to child labor regulation was impossible. In all the debates over child labor regulation for the nation and the District of Columbia in the Fifty-ninth and Sixtieth Congresses, only one politician spoke out in support of child labor in factories, mines, and mills. And even he quickly noted that he supported child labor regulation in the District of Columbia.Footnote 122 But many objected to the Beveridge Bill on constitutional grounds, pointing especially to its far-reaching implications. Constitutional arguments were the primary weapon against the bill, and they were enough to kill it.
The ultimate passage of federal child labor legislation provides additional evidence that the structure of antitrust law shaped the debate over the Beveridge Bill. The first federal child labor bill, known as the Keating–Owen Act, passed Congress in 1917. The debates over that law show that it only passed after changes in antitrust doctrine had reconfigured Congress's understanding of the relationship between it's commerce power and liberty of contract. In 1911, the Supreme Court upheld antitrust suits against American Tobacco and Standard Oil. In those decisions, the Court reconfigured antitrust doctrine by adopting the rule of reason, holding that the Sherman Act prohibited only unreasonable restraints of trade.Footnote 123 Because liberty of contract never protected unreasonable contracts in restraint of trade, those decisions made clear that liberty of contract did not threaten antitrust policy. It became possible to argue that liberty of contract was an independent limit on Congress's commerce power without being accused of undermining antitrust policy, which is exactly what proponents of the Keating–Owen bill did.
Thomas Parkinson, the director of the Legislative Drafting Bureau at Columbia University and a supporter of child labor regulation, made the point clear in his opening remarks at hearings in 1916. “[T]he [constitutional] problem,” with the federal child labor bill, he said, “is not only capable of division into two general parts, but it requires that division, if we are to keep the precedents and our own consideration clear….” First, “[w]hat are the respective jurisdictions of the Federal Government and the State governments over commerce?” Second, “what are the respective rights and powers of the Federal Government and the individual,” a question that “arises under the fifth amendment to the Constitution.”Footnote 124 Parkinson used that division to reject the series of unpleasant scenarios that Beveridge felt compelled to accept.
Did his expansive interpretation of the scope of Congress's commerce power mean that Congress could prohibit commerce with a state that allows women to vote, or prohibit the interstate shipment of the product of the labor of African Americans, Parkinson was asked. “So far as the commerce clause alone is concerned . . . yes,” he admitted.Footnote 125 But, he continued, “Congress has not arbitrary power over interstate commerce, and the reason . . . is the fifth amendment.”Footnote 126 He made clear that liberty of contract was an independent limit on Congress's commerce power, which made the constitutionality of federal child labor and adult labor legislation different questions. A federal law prohibiting the interstate shipment of goods produced by children, he indicated, would not violate the liberty of contract protected by the Fifth Amendment because the Supreme Court had found regulations of child labor consistent with the liberty of contract protected by the Fourteenth Amendment. The situation for adults was different. Coppage v. Kansas had recently struck down a state law banning yellow-dog contracts on liberty of contract grounds, which indicated that a federal adult labor law would be unconstitutional.Footnote 127
Beveridge's loss in the 1910 elections kept him from taking part in the debates over the Keating–Owen Act, at least formally, but his contribution was recognized. Woodrow Wilson gave the pen he used to sign the law to the chief lobbyist of the NCLC, but he passed it to Beveridge, whom he recognized as the inspiration for the law and the constitutional argument that made it possible. But whatever gratification Beveridge felt was short lived. One year later the Supreme Court struck down the Keating–Owen Act by adopting the narrow view of the commerce power that Beveridge had fought so hard against.Footnote 128 Federal child labor regulation would not pass the Court's watchful eye until 1941, after Beveridge's death.Footnote 129 Perhaps even more discouraging for Beveridge was the failure of child labor reform to spark a reformation of his Republican Party. In 1912, the conflict between insurgents and old guard Republicans widened into a split. Progressives threw their support to Theodore Roosevelt and his new Progressive Party, whereas most Republicans stood with sitting President William Howard Taft. The split allowed the Democratic Party—despite its significant conservative elements—to claim the mantle of progressivism, a title it still retains.
Albert Beveridge was a successful politician, driven by political concerns. He believed that increasing Congress's power over interstate commerce was good policy and good politics; therefore, he was willing to push the ambiguities of the Lottery Case as far as they could reasonably go, even though it challenged long-standing assumptions about federal power. But he was also a lawyer, and in fighting for his child labor law he believed he could not reject his opponents’ series of unpleasant scenarios without denying a doctrinal principle that was clearly established and a crucial support to trust-busting, a widely popular policy.
Beveridge's speeches and correspondence indicate that he respected that doctrinal principle because he believed a legalistic system of constitutional interpretation was the proper foundation for American politics. Alhough his teleological understanding of the Constitution looked beyond the Supreme Court for the causes of doctrinal development, he never challenged its central role in defining the limits of government authority. He seemed confident the Court would ultimately recognize the Constitution's true purpose. He may also have had more cynical motivations and supported the Supreme Court's antitrust doctrine only to make his bill appear constitutional and, therefore, more palatable to his colleagues and the public. But regardless of his internal motivation Beveridge chose to respect the logical integrity of legal principle even when it hurt his child labor bill. And that choice, in turn, reveals the subtle but important ways that legal principle shapes the course of legislative politics and confirms, that political history—even of the legislature—is unavoidably legal history as well.
