As usual, I find Kurt Lash persuasive – in this case, his recent guest post (responding to John Mikhail) on the Tenth Amendment.  But I think Professor Mikhail may still be right that Hammer v. Dagenhart was wrongly decided.

Hammer was the pre-New Deal commerce clause case that invalidated a federal statute banning the sale in interstate commerce of goods made by child labor.  Professor Mikhail says Hammer erred in insisting that Congress could exercise only “expressly” delegated power, because that word does not appear in the Tenth Amendment.  Professor Lash takes issue with this point.

Even if Mikhail is wrong about “expressly,” though, Hammer nonetheless seems problematic.  Hammer involved an express power of Congress, the power to regulate interstate commerce.  The Hammer majority said that, even though the federal statute technically was a regulation of interstate commerce, it had the improper effect of regulating a local matter (working conditions).  But I’m doubtful that this limitation is anything other than an invention of the Court.

First, nothing in the commerce clause says anything about the effects Congress may or may not seek to achieve in regulating interstate commerce.  Suppose Congress bans the shipment of a particular commodity (say, lottery tickets) in interstate commerce.  Does the validity of this law depend on whether the effect is to get rid of lottery tickets altogether, or is only to protect states that don’t like lottery tickets from cross-border flows?  Maybe, but the text does not suggest this limitation.

Second, even if one grants that the effect matters, why must we conclude that the anti-child labor law had an improper effect?  The point of the law might be to protect industries in states that banned child labor from being undercut by interstate competition from states that allowed child labor.  This sort of worry is common in modern international trade law, in which countries worry that trading partners will gain unfair advantages from lax labor, occupational safety, environmental and similar laws that allow imports to be made more cheaply than domestic products.  Even under a narrow view of allowable purpose, that effect seems sufficiently connected to interstate commerce.

The Hammer Court acknowledged this argument, but said flatly that “There is no power vested in Congress to require the States to exercise their police power so as to prevent possible unfair competition.”  True, but Congress was not requiring anything of the States; it was simply putting restrictions on the access to interstate markets (that is, regulating interstate commerce).

Justice Holmes, though not always the best textualist/originalist, seems persuasive in dissent:

The first step in my argument is to make plain what no one is likely to dispute — that the statute in question is within the power expressly given to Congress if considered only as to its immediate effects, and that, if invalid, it is so only upon some collateral ground. The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. …

The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States …

The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries, the State encounters the public policy of the United States, which it is for Congress to express. …

This argument is subject to two main objections, one general and one specific.  The general one is that, given the modern interconnected national economy, allowing this sort of federal regulation would allow Congress to regulate far beyond what the framers of the Constitution intended.  Congress could regulate not only child labor, but all the labor, safety and environmental aspects of producing goods, through the expedient of banning from interstate commerce all goods that did not comply with its standards.

I think this assessment is correct but irrelevant.  The commerce clause granted the power it granted.  The fact that due to changing times that power has a much wider scope in the twentieth century than it did in 1789 does not change what power was granted (for a public meaning originalist, anyway).  In that sense, Hammer can be seen as a living Constitution decision: it rests on an idea that the commerce clause must be updated to account for changing economic conditions.

The specific objection is that if Hammer was wrong, then the pre-Civil War Congress could have constitutionally banned the shipment in interstate commerce of goods made by slave labor.  Thus we must conclude that southerners accepted this power at the time of ratification – which may seem implausible.  After all, southerners at the Convention demanded that Congress’ power to ban the slave trade be precluded specifically until 1808; can we suppose that they insisted on that provision but were unperturbed by an immediate power of Congress to ban slave-produced commodities in interstate commerce?

I concede this is a worrisome objection, but I think it can be overcome.  The textual grant of power to Congress is broad enough that to assume a narrow version of it would have been both unwise and unlikely.  If southerners failed to raise an objection, it seems more likely that the slave states in 1787-88 simply weren’t focused on this issue.  They thought they would hold the majority in the foreseeable future.  They did not expect Congress to regulate in this direction.  In contrast, the slave trade was an obvious target for prohibition, because many states that allowed slavery nonetheless opposed the slave trade; only the deep South states favored it, and they would be easily outvoted (as in fact they were once the constitutional bar lapsed).

I confess to not having made an extensive study of the issue, so the history may (for all I know) point strongly the other way.  But on its face, the commerce clause does not seem to support the result in Hammer.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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