The Roosevelt Coup D´etat of 1933-40
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THE HISTORY OF THE MOST SUCCESSFUL EXPERIMENT EVER MADE BY MAN TO GOVERN HIMSELF WITHOUT A MASTER
By STERLING E. EDMUNDS
Of the St. Louis Bar
Originally printed in 1940
The Plan for Government Control in the Rearing of American Youth
The first federal child labor act of 1916, forbidding the interstate transportation of the products of factories employing young persons below certain ages and beyond certain hours, was administered by Miss Grace Abbott, head of the industrial division of the Childrens Bureau, until the act was held unconstitutional in 1918. The administration of the second act of 1918, passed ostensibly as a revenue measure, and levying a 10 percent super tax on the net earnings of such concerns, was confided to the Treasury Department, a very unsatisfactory arrangement from the standpoint of the Childrens Bureau. It was an invasion of an important field of "child welfare" by another and uninterested agency. In May, 1919, a United States district court in North Carolina had held the second act unconstitutional and the case was appealed to the Supreme Court, which upheld the decision of the lower court in May 15, 1922. After the decision of the lower court in 1919, the Childrens Bureau set about to recapture this power over youthful workers for itself, through an amendment to the Constitution of the United States.
The interest of the Socialists in national control of youthful toilers had been manifested as early as 1908 when the National Socialist Convention, in its "industrial demands," declared for
1. The improvement of the industrial condition of the workers by forbidding the employment of children under 16 years of age; and,
2. By forbidding the interstate transportation of the products of child labor."
In the new campaign Mrs. Kelley again took the leadership. In February, 1920, Miss Abbott was sent to the convention of the National League of Women Voters, became chairman of its resolutions committee, and promptly committed the organization to
"The adoption of a constitutional amendment giving to Congress the power to establish minimum labor standards."
The ten pending Sheppard-Towner Maternity Act was also endorsed.
The General Federation of Womens Clubs was next committed to a constitutional amendment. At the convention of the National Womens Trade Union League, held in June, 1922, Miss Abbott, then chief of the Childrens Bureau, said:
"The Childrens Bureau has the whole field of child welfare and child care . The question at the present time comes down to a constitutional amendment. There are several points to come up for decision: to give Congress power to establish minimum standards; . Another is whether we should have a child labor amendment at all, it should not have something more than child labor that is, whether it should include in the amendment more in the way of language giving us constitutional authority to do some of the other things in the federal field that we might like to do, and whether that is tactically the thing to do at the present time, is the question."
The "child labor" amendment, which the women of the Childrens Bureau and their associates were finally able to induce Congress to pass and propose to the States, did, in fact, contain language broad enough to permit them to do many "other things" that they "might like to do" as political guardians of Americas children, if the amendment is ever ratified by the states.
Mrs. Kelleys National Child Labor Committee, with Owen R. Lovejoy as general secretary, now became the chief propaganda agency of the Childrens Bureau, as it has ever since remained, enrolling thousands of women contributors at $10 a year, through the effective emotional appeal of its literature in behalf of the "child."
The pressure which the womens lobby exerted was sufficiently strong to cause the Judiciary Committee of the House to inaugurate hearings on the subject of child labor on June 1, 1922, two weeks after the Supreme Court had declared the second federal child labor act unconstitutional. The Childrens Bureau had a firm supporter in the elder Senator La Follette of Wisconsin, who, addressing the American Federation of Labor on June 14, on the Supreme Courts recent decision, said:
"We have not time to amend the Constitution every time the Supreme Court throws out a good law . I would amend the Constitution so as to provide (1) that no inferior judge shall set aside a law of Congress on the ground that it is unconstitutional; (2) that if the Supreme Court assumes to decide any laws of Congress unconstitutional . The Congress may, by reenacting the law, nullify the action of the Court. Thereafter the law would remain in full force and effect, precisely the same as though the court had never held it unconstitutional."
In 1933, when the Supreme Court held the District Minimum Wage Law unconstitutional, representatives of a number of organizations met in Washington and appointed a committee, including Mrs. Kelley, to effectuate Senator La Follettes proposed change. Mrs. Kelley, in an article entitled the "Childrens Amendment," appearing in Good Housekeeping for February, 1923, said:
"We have not the time to amend the federal Constitution every time the Supreme Court throws out a good law, said an eminent Senator in a significant speech. Congress has done all that ingenuity could suggest to lawmakers hampered by a Constitution older than the first American cotton mill, interpreted by men appointed for life and responsible only to their consciences, with none to fear save the grim reaper, Death."
Almost a scope of amendments designed to give the federal government power over the youthful workers in the States were introduced in Congress toward the end of 1922 and in 1923, but the one which Mrs. Kelley herself took part in drafting, was introduced in the Senate by Senator Medill McCormick of Illinois, and in the House by Representative Israel Foster of Ohio, with a provision that it be submitted to the legislatures of the States for ratification. Its text is as follows:
"Sec. 1. The Congress shall have power to limit, regulate and prohibit the labor of persons under eighteen years of age.
"Sec. 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress.:
Appearing before the Senate Committee hearing on the proposed amendment on January 10, Mrs. Kelley affirmed in a long statement "that there is insistent and powerful pressure in all industrial States to use the labor of children at as early an age as they can get it and there is no prospect that the pressure will grow less. That is the reason it is unsafe to leave children to the tender mercies of the pressure of ignorant parents or economically weak parents who may wish wages that can be commanded for children."
At the Senate hearing the same day, Owen R. Lovejoy of the National Child Labor Committee was asked by Senator Shortridge:
"I assume that you looked closely and curiously at the language in the resolution, the wording, to the end that it would give ample power and make it possible to achieve the object in view?
"Mr. Lovejoy: Mr. Chairman, we have done so, but at the same time I should like to say the legal advisers of the committee are still at work.
"Senator Walsh: What is the feature on which your counsel and advisers are still at work?
"Mr. Lovejoy: There are two or three points on which they are working at the present time. One relates to whether, if this resolution were adopted the so-called McCormick resolution there would be given to Congress power in relation to the physical and educational interests of children, as well as to their industrial protection."
Mr. Lovejoys testimony disclosed the purpose of the Childrens Bureau to assume power in relation to all young persons in the United States under 18 years of age 43,000,000 of them and some of them married and with children of their own in the three other principal fields outside of health, namely in the economic, the educational and the recreational.
The generic word "labor" used in the amendment means physical or mental toil, physical or intellectual exertion, according to its ordinary definition in all dictionaries; and courts, of course, construe words in grants of power according to their usual meanings. It is also a settled rule of constitutional construction that the delegation of power on a given subject carries with it all incidental powers considered necessary to make the delegated power effective. In a Prohibition case, decided by the Supreme Court in 1923, on the question of "implied powers" that attach to the grant of express powers, the Court said:
"The Constitution confers upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are vested in it. In the exercise of such non-enumerated or implied powers, it has long been settled that Congress is not limited to such measures as are indispensably necessary to give effect to its express powers, but, in the exercise of its discretion as to the means of carrying them into execution, may adopt any means appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution.
"It is likewise well settled that where the means adopted by Congress are not prohibited, and are calculated to effect the object intrusted to it, this court may not inquire into the degree of their necessary, as this would be to pass the line which circumscribes the Judicial department, and tread upon legislative ground."
If Congress, therefore, in the exercise of power under the proposed amendment, should prohibit all employment to those under 18 years of age, it would also be empowered to prevent the evils of enforced idleness by prescribing such educational and recreational measures as it deemed necessary. And to offset poverty, resulting from enforced idleness, it could provide government support, in its own discretion.
Mrs. Kelley and her co-workers gave to this proposal the title, the "Child Labor" Amendment, although the word "child" nowhere appears in it. In fact, the use of the term "children under 18years of age" was favored by some of the proponents in the Senate, but was strenuously objected to by Mrs. Kelley. "I am indeed very apprehensive about the use of the word child," she told the Senate Committee on January 15, 1923. Mrs. Kelley also expressed the hope that "the spacious wording" of the amendment will be retained. Professor William Draper Lewis, representing the National Child Labor Committee, had made an investigation into the legal implications of the word "child" and told the Senate Committee that "the term child has been held to mean persons under 14 years of age."
As the Childrens Bureau had declared "child welfare is a national and even an international problem," in its annual report for 1919, and as Miss Abbott had served as "unofficial American observer" on the commission on international traffic in women and children of the League of Nations in 1923, it is not surprising that the bureau induced Albert Thomas of France, head of the International Labor Office at Geneva, to come to Washington in behalf of the "Child Labor" Amendment. He appeared before the Senate Committee on January 5, 1923, the day Mrs. Kelley had also given testimony.
Thomas said he represented the International Association for Labor Legislation as well as the labor office of the League of Nations. He told of proposals for legislation adopted by the international association, including "a proposition to protect the children before birth." Then he said, "we voted also a draft convention for the situation of children in agricultural work . Children under the age of 14 years may not be employed or work in any public or private agricultural undertaking or any branch thereof except outside of the hours fixed for school attendance." Toward the end of his testimony Senator Walsh asked Thomas what association he had had with the labor movement before his appointment to the international labor office. He replied:
"The position of deputy (in the French parliament) representing the Socialist Party."
On February 15, 1924, when Miss Abbott appeared before the House Judiciary Committee to urge the adoption of the amendment, Mr. Sumners asked if she desired to express an opinion on the wisdom of regulating the labor of children on farms. She parried the question for some time with other questions. Then Mr. Sumners asked her if she wouldnt be fearful that an amendment giving such power would not be ratified by the States. She replied that she had "no fears on that score." In reply to further questioning she finally said:
"I would make no exception at all. I favor a general grant of power."
In much of the literature of the Childrens Bureau, and of its principal outside propaganda agency, the National Child Labor Committee, the evil of children working in agriculture and on farms had long been stressed as presenting the most difficult aspect of the child labor problem, and, it was said, a greater number were involved. Among other objections was that the schooling of farm children was sacrificed.
On March 7, 1924, among those appearing at the House Judiciary Committee hearing, was Mr. Gray Silver of Washington, representative of the American Farm Bureau Federation. He said:
"Some of the child labor enthusiasts who would save all children from work until manhood and womanhood have become unduly exercised over a few statistics which they do not understand. They have forgotten the very pertinent fact that the cities recoup their virility from the farm where the boys and girls are always given something to do in the line of light tasks, which cheats the devil of unemployment and builds sturdy frames and muscles.
"I feel sure that no one on this committee is going to vote for a bill or resolution which might eventuate in some bureaucrat determining whether a community, whose livelihood depends upon the raising of strawberries, should not close school for a few weeks and thus permit the children to aid in the harvest upon which the financial returns of the whole year depend. Nor would the farmer relish regulations from Washington prohibiting children from aiding in the harvest of many other crops where light labor at reasonable hours is necessary, and rightly so, the capital which sensational magazines are making of the idea that he raises a family for the purpose of harvesting a cotton crop.
"To pass this resolution making it possible for the States to amend the Constitution would straightway result, in the normal course of events, in the passage of a bill authorizing the Childrens Bureau in the Department of Labor to issue some regulations which would make it illegal for boys and girls reared on the farm to be anything but first-class loafers."
It was about this time, in 1924, that Miss Lillian Wald of the Henry Street Settlement, with whom Mrs. Kelley still lived, took a trip to Moscow to investigate "social conditions," according to an article in the Survey Graphic, December 1, 1924. Anna Louise Strong was already there as correspondent for American Communist papers. A little later the Communist groups and the Communist press in the United States, launched into a violent campaign "to abolish child labor." The Young Communist International, at its Third International Congress held in Moscow in December, 1922, at the time the Childrens Bureau decided to work for a "child labor" constitutional amendment, adopted "a new program of economic demands of the young workers, which it herewith submits to the great mass of the oppressed and exploited young proletariat and to the entire working class, -
"The basis and aim of our program is the
"Socialistic reorganization of juvenile labor;
"This means: Abolition of wage slavery for all young workers up to 18 years, who must be cared for by the State and treated from an educational point of view until they have attained this age."
This was immediately echoed in the second national convention of the Young Workers League of America, the United States section of the Young Communist International, which met in Chicago, May 20-22, 1923, and demanded:
"Abolition of child labor," with this statement: "The militant program of the Young Workers League does not take account of the needs of the capitalist system, nor is it merely a means of eliminating the worst instances of the exploitation of working class youth. It must . Proclaim the ultimate and fundamental aim of the younger worker, the complete transformation of the condition of juvenile labor and its socialist reorganization. This means abolition of all wage slavery for all young workers up to 18 years of age. The young workers must be cared for by the State and treated from an educational point of view until they have attained this age."
On April 26, 1924, the McCormick-Foster "Child Labor" Amendment came up for passage in the House, and fifteen proposed amendments were offered from the floor in an effort to change its phraseology. Representative Montague of Virginia, offered the first, in these words:
"This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the conventions of the several States, within seven years of the submission hereof by Congress."
Mr. Foster, who had sponsored the amendment, objected and Mr. Montagues amendment was defeated without a roll call. Mr. Garrett of Tennessee, the floor leader, offered an amendment to substitute conventions for legislatures as the ratifying agencies. Mr. Linthicum of Maryland proposed adding a limit of five years within which it must be ratified, and Mr. Harrison of Virginia offered a substitute forbidding ratification by legislatures until State elections had intervened. All were rejected, Mr. Garretts by a vote of 175 to 84. Mr. Garrett again moved to substitute conventions for legislatures, and again it was rejected. Mr. Lafferty of California proposed reducing the age limit to 16 years in place of 18.
"I am perfectly willing the State should have, as they now have, the right to legislate for the age of 18, or the age of 19, 20, or 21," said Mr. Lafferty, "but I . Do not want the American Congress, situated in Washington, the capital of the nation, situated 3000 miles from my home, to have the right to say to a big husky fellow 17 years old in the State of California, You shall not work for a living."
Mr. Laffertys amendment was approved, 148 to 136.
Mr. Ramseyer of Iowa proposed a substitute in these words:
"Congress shall have power to limit, regulate and prohibit labor in mines, quarries, mills, workshops, factories and manufacturing establishments of all persons under 16 years of age."
"Mark right here," declared Mr. Ramseyer, "it does not say the employment of persons under 18 years of age, but the labor of persons under 18 years of age. A boy who is sent out by his father to milk the cows, labors. If the same boy is hired by a neighbor to milk cows he is employed . Under the proposed amendment Congress will have the power to limit, regulate and prohibit the labor of girls under 18 in the homes and of boys under 18 on the farms."
Mr. Ramseyers substitute was rejected by a vote of 158 to 120.
Mr. Oliver of Alabama sought to limit the power to that exercised by any State legislature on the subject prior to April, 1924, but failed.
Mr. McSwain of South Carolina offered the following proviso:
"Provided, that no law shall control the labor of any child in the house or business or on the premises connected therewith, of the parent or parents."
It was rejected, 192 to 76.
Mr. Moore of Virginia offered a like amendment excepting from control "the labor of such persons in the homes or on the farms where they reside," which was rejected, 185 to 89.
Mr. Linthicum offered a time limit of seven years in the matter of ratification, which was rejected. Mr. Jones moved to insert the word "commercial" before the word "labor," with a like result. Mr. McKeown moved to strike out the second section, and failed.
Mr. Laffertys amendment, reducing the age limit from 18 years to 16, was again voted on when the Committee of the Whole House rose, and it was rejected by a vote of 199 to 169, and the 18-year age limit restored. The Childrens Bureau amendment, as originally drawn, with the cooperation of Mrs. Kelley, was then passed by a vote of 297 to 69.
In the Senate on May 31, Senator William H. King of Utah made a bitter attack on the amendment. He said:
"Every Bolshevik, every extreme Communist and Socialist in the United States is back of this measure. The Bolsheviks of Russia were familiar with the scheme that was about to be launched to amend our Constitution. In conversation with one of the leading Bolsheviks in the City of Moscow, one of the educators, when I was there last September and October, I was remonstrating with him about the scheme of the Bolsheviks to have the State take charge of the children.
"Why, he said, You are coming to that, and he called my attention to the statutes in many States in regard to compulsory education. Then he said:
"A number of Socialists in the United States, and he mentioned a number of names, but I shall not mention them here, are back of the movement to amend your Constitution of the United States, and it will be amended, and you will transfer to the Federal government the power which the Bolshevik government is asserting now over the people of the State.
"Of course, this is a Communistic, Bolshevistic scheme, and a lot of good people, misled, are accepting it, not knowing the evil consequences which will result and the sinister purpose back of the measure."
On June 2, 1924, the day the amendment was on the Senate calendar for action, Senator James A. Reed made a lengthy address against it. He said:
"Today a State has no power to prohibit the labor of a boy 17 years of age. If the State of Utah or of Missouri of California were to pass a law prohibiting the labor of boys under 18 years of age broadly prohibiting it as this amendment proposes the Congress may do such a law would be declared unconstitutional in five minutes .
"There is no power in any State to limit the right of a healthy boy or girl to work for a living in a perfectly healthful and proper place; there is no power in any civilized government worthy of the name to do it . Always the police power of the States had to have back of it something aside from arbitrary will of the legislative body."
Senator Reed might have cited the fact that before the Roosevelt coup detat, the courts had held that the constitutional protection found in Amendments V and XIV, that "no person shall be deprived of life, liberty or property, without due process of law," applied quite as fully to youths as to adults; and that youths are citizens, though not yet in possession of political rights, and might sue through their parents or guardians to vindicate their constitutional rights; and that the right of "liberty" had been judicially construed as embracing "the right to follow any of the common occupations," and "to pursue any livelihood or avocation." To prevent young persons under 18 years of age from earning their living is plainly a violation of their right of "liberty" and a withdrawal of the protection of the constitutional provision referred to.
When the question came up to be voted upon Senator Reed offered a proposal excepting from the amendment "those engaged in agriculture and horticulture," but it was rejected by a vote of 42 to 38. He next proposed to reduce the age to 14 years, but that was rejected, 57 to 25. Senator Dial of South Carolina proposed to except those young persons "engaged in outdoor employments," which was rejected without a roll call. Senator Reed then proposed a reduction of the age to 16 years, which was lost, 43 to 40. Then he offered this substitute:
"The Congress shall have power reasonably to limit and regulate the labor of persons under 18 years of age and to prohibit such labor in pursuits involving special hazards to health, life or limb."
This was rejected, 58 to 25.
Senator Bayard proposed that the amendment be submitted to conventions in the States instead of to the legislatures, but it failed, 58 to 22.
Senator Fletcher of Florida proposed to limit the period in which it might be ratified to five years, which was also defeated. Senator Reed made a final effort to eliminate from the amendment the words "and prohibit," which was defeated, 57 to 23. The amendment was then adopted by a vote of 61 to 23, and sent to the States for action.
Just before the opening of the year 1925, when many State legislatures would meet in regular session, the Communist newspapers in the United States opened a "united front" campaign for ratification. Said The Daily Worker on December 1, 1924:
"State legislatures must be compelled to ratify immediately the child labor amendment to the Constitution. Congress and the State legislatures must be compelled to pass laws providing for full government maintenance of all school children of workers and poor farmers."
And on December 15:
"This is the struggle of the Workers Communist party and Young Workers Communist League in their joint war against child labor. Labor must learn that the fight against child labor is a fight to abolish the capitalist State, an effort to establish Soviet rule and the ushering in of the Communist social order under which children will become heirs of their childhood for the first time since human history began."
The Workers Monthly for January, 1925, said in a leading editorial:
"What will happen under a proletarian regime is strikingly illustrated by the story in this issue by Anna Louise Strong, formerly of Seattle, and now in Russia. Anna Louise Strong tells about the one spot on the globe where the life problems of the working class are being solved in a comprehensive manner. It is only when the workers in the United States have similar power to control, through their own government of workers councils, the social and economic life of the country, that child labor will cease its destructive work.
"The prohibition of child labor, unless it is accompanied by government maintenance of children, is absolutely ineffective . And such pressure upon the capitalist, in order to have any effect whatever, must be given point and substance by demands for governmental maintenance to be paid for by special taxes upon large incomes. The right who appropriate the wealth produced by the working class, must be made to disgorge a part of it for this purpose, as one of the first steps toward making them disgorge all to make way for the new system of society."
Although Congress had been told that "millions of women" demanded this amendment, within less than three years, that is, up to March 18, 1927, the amendment had been rejected by the legislatures of 38 States, or more than three-fourths, and had been ratified by but five. In Massachusetts, where an advisory referendum was held on the amendment, the people sustained the legislative rejection of it by a vote of 697,563 to 241,461.
Within the last twenty-five years every State in the Union has been legislating to prohibit child labor, and every State now has not only child labor laws, but compulsory school attendance laws as well. There has long ceased to be any child labor problem in the United States, except in the views of the Childrens Bureau and the Communists, who insist that all young persons should be compelled to remain in school until 18 years of age, with State support. North and South Carolina were for many years unjustly stigmatized as the arch exploiters of children in cotton mills, yet these two States are admitted, even by the Childrens Bureau, to have almost model child labor laws, forbidding any employment of young persons under 16 years of age during school hours.
In the annual report of the Childrens Bureau for 1925, despite the admission that 34 States had by that time rejected the "Child Labor" Amendment, Miss Abbott says:
"It is not to be expected that the efforts to secure ratification of the amendment will be abandoned."
When the maternity bill was being discussed by Senator Bayard in the Senate, on January 10, 1927, Senator King interrupted him and asked:
"Does the Senator believe that it is consistent with our theory of government for the executive departments and bureaus to become propagandists for legislation, and to go out to various organizations and try to secure their endorsement and their approval of legislation which they seek to have enacted, extending their functions, and, of course, diminishing the powers of the States?
"Senator Bayard: I will say to the Senator, in answer to his question, that in civil life, if funds are entrusted by one person to another for a definite purpose, and they are expended but not for the purpose for which they are given, that is commonly called embezzlement. The best answer I can suggest to the Senator is that, in my opinion, if these people are not committing actual financial embezzlement, they are certainly committing a moral embezzlement."
And yet there is an act of Congress, of 1919, which declares that "no part of any money appropriated by any act shall be used, directly or indirectly, to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device intended or designed to influence in any manner a member of Congress to favor or oppose by vote or otherwise any legislation or appropriation by Congress," with the penalties of removal from office and a fine of $500 or imprisonment for not more than one year or both, for violation of the act. Nearly all departmental officials constantly violate this law and no effort has ever been made by the prosecuting authorities to enforce it against them.
With the election of President Roosevelt in the fall of 1932 the Childrens Bureau, knowing of his previous endorsement of the "Child Labor" Amendment, quietly made plans to revive the campaign for its ratification, despite the lapse of nearly nine years since it was submitted and its overwhelming rejection. It was believed that President Roosevelts popularity and the argument that "children should not be employed while adults were walking the streets looking for jobs would overcome the earlier opposition.
Mrs. Kelley had died in 1932, but her National Child Labor Committee, with more than $100,000 annually to spend, lived on to direct this campaign, with the aid of the National League of Women Voters, the General Federation of Womens Clubs, the National Council of Jewish Women, and union labor organizations.
Copies of the original resolution proposing the amendment and officially sent to the States on June 2, 1924, were hardly to be retrieved from the musty legislative records of rejecting States for reintroduction. Hence copies had been privately made and privately handed to those selected in each legislature to meet in 1933, who would reintroduce them and work for ratification.
On January 31, 1933, before Mr. Roosevelt was inaugurated, Oregon, which had rejected the amendment in 1925, ratified. Six States had previously ratified: Arkansas, California, Arizona and Wisconsin in 1925, Montana in 1927, and Colorado in 1931. In February, 1933, the State of Washington, which had rejected in 1925, ratified; and later came North Dakota, which had also previously rejected.
When Miss Frances Perkins was installed as Secretary of Labor in March, the movement was getting momentum. Ohio ratified on March 22; in May, Michigan and New Hampshire, all of which had rejected in 1925. In June, New Jersey and Illinois followed, and in July, Oklahoma. In December, Iowa, West Virginia, Minnesota, Maine and Pennsylvania all reversed their actions of 1925, making fourteen ratifications within the year, and a total of 20. In the same period Florida, Kansas, Maryland, Massachusetts. Missouri, South Dakota, Texas, Utah and Wyoming rejected the amendment for the second time.
In 1934 the campaign continued before the legislatures then in session, but the march of ratifications had apparently halted. In February, Massachusetts and Texas rejected the amendment for the third time. It was alarm over this situation that prompted President Roosevelt to make public his interest in ratification, in his reply to a letter of inquiry from Mrs. Dorothy Brown, in which he had said: "Of course, I am in favor of the child labor amendment." It also spurred Miss Perkins to make personal pleas before the Tennessee and Kentucky legislatures. In her address before the Kentucky legislature, on February 21 that year, she insisted the word "labor" used in the amendment meant "employment for profit" only, and not unpaid labor of young persons in the home or on the farm. And she also said:
"We have come to a time when there is not enough work for our adult population, and we have to look at the problem of child labor not only as a problem of young people who have to be protected, but we have to recognize that if there is not enough work to go around . We must preserve such jobs as there are for the adults because young people under 18 years of age can be and must be well and profitably employed, - and I say profitably not in the money sense, but in the social sense, in the pure common sense, well and profitably employed at some kind of education."
On March 1, only about a week later, the Kentucky Senate Rules Committee killed the amendment, Kentucky having previously rejected it in 1926. The Tennessee legislature likewise rejected the amendment again. The result for the year 1934 was that thirteen State legislatures either rejected or failed to act on the proposal and no State legislature ratified.
In 1935 the amendment was rejected to ignored by nineteen States: Connecticut, Delaware, Florida, Georgia, Kansas, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Mexico, New York, North Carolina, Rhode Island, South Carolina, South Dakota, Texas, Vermont and Alabama, but it was ratified by four States: Wyoming, Utah, Idaho and Indiana. Thus one-half of the States, 24, had ratified, but three-fourths, 36 were necessary to make the amendment a part of the Constitution.
In 1936 the legislatures of six States rejected the amendment but none ratified. On January 8, 1937, President Roosevelt intervened personally again with letters addressed to the Governors of nineteen States whose legislatures were to meet that year, urging that ratification of the amendment be recommended to their legislatures as "one of the major items in the legislative program of your State this year." In response to that pressure, four States ratified, namely, Kansas, Kentucky, Nevada and New Mexico, but fourteen States either rejected or ignored the matter.
In 1938 there was no ratification but there were three rejections, and in 1939 no ratifications and seven rejections. Up to May, 1940, resolutions to ratify the amendment reappeared in the legislatures of New York, Rhode Island and South Carolina. In New York the resolution was rejected again in the Judiciary Committee of the Assembly on February 9. The total ratifications now stand at 28, after the lapse of nearly sixteen years since the proposal was submitted to the States by Congress. Many States have rejected it four and five times, while New York has acted unfavorably seven times and Massachusetts eight times.
This determination of those at the head of the federal government thus to take the entire youth of the country from under the protection of their States and of the Constitution itself, and to make guinea pigs of them in "Social" experimentation is one of the strangest spectacles in our constitutional history. It not only reveals a new audacity on the part of an administration flushed with power, but also an unusual supine ness on the part of the State governments towards raids upon their reserved rights.
Only two States, Tennessee and Massachusetts, have shown any public resentment over the amendment and the constant pressure from Washington to force its ratification. In 1925, the Tennessee legislature, in a lengthy resolution of rejection denounced the proposal as one that attempts to invade the rights of the States to "a revolutionary degree" and seeks "in a socialistic manner to place the federal government in loco parent is toward all young persons under 18 years;" and it petitioned Congress to prevent the submission of any other amendments of such a "paternalistic form." In 1937, both Governor Gordon Browning of Tennessee, and Governor Hurley of Massachusetts, issued statements of opposition in reply to President Roosevelts letters to Governors urging ratification.
How intense the former spirit of the States was in jealously guarding their reserved rights, has a piquant illustration in the Life of John Randolph of Roanoke, by former Senator William Cabell Bruce, who quotes Randolph as saying:
"Asking a State to surrender part of her sovereignty is like asking a lady to surrender part of her chastity."
When the Kentucky legislature reversed its former position and ratified the amendment in January, 1937, the validity of the ratification was challenged in the courts; and the Kentucky Court of Appeals held the ratification void on the following grounds:
1. That the power reserved to the States to act on a constitutional amendment, when once exercised, whether to ratify or reject, is exhausted;
2. That, by 1927, the legislatures of twenty-one States had rejected the amendment and certified their acts to the Secretary of State of the United States, and that affirmative rejection by more than one-fourth of the States, or 13, constituted a final and irrevocable decision of the referendum; and
3. That ratification must take place by three-fourths of the States within such a reasonable time as to make the action an expression of approval of the people, sufficiently contemporaneous as to reflect the popular will in all sections of the country, at relatively the same period; that twelve years and seven months was not such a reasonable time.
Ratification by the Kansas legislature in 1937 resulted in a like case that was carried to the Kansas Supreme Court. The Kansas court took a view opposite to that of the Kentucky court, and both cases were taken to the Supreme Court of the United States. The decision of the Supreme Court, newly constituted with its Roosevelt majority, handed down on June 5, 1939, with Mr. Justice Butler and Mr. Justice McReynolds dissenting, upheld the contention that the amendment is still validly pending and open for further action. But it is a remarkable decision in that it passed on none of the important constitutional questions that were briefed and argued. The case was disposed of on the novel ground that the question is a "political," and not a "judicial" one, and that Congress alone may decide whether a constitutional amendment is validly pending; and, even after three-fourths of the States have ratified it, whether it shall become a part of the Constitution. It is ignored the questions (1) whether a State that has acted may later reverse its action; (2) whether affirmative rejection by more than one-fourth of the States defeats an amendment; and (3) whether an amendment must be ratified within a reasonable time, as the Supreme Court had held in a case in 1921.
With the resumption of this campaign in 1933 to ratify the old amendment, the Communists also resumed their activities in support of it, not only in their newspapers but by personal appearance at hearings before committees of some of the State legislatures. Typical of their editorial support are the following excerpts from The Daily Worker, January 11, 1937:
"The majority of the Nine Old Men on the Supreme Court have twice decreed that it is lawful to exploit little children in the United States for profit.
"The Supreme Court, the rich Southern landowners, and the big trusts (on the ground that there must be no federal laws regulating child labor) have conspired together to force children to work so that they could make profits out of baby flesh.
"Urge your trade union local, all church organizations, Negro societies, youth groups, to pass resolutions demanding the immediate adoption of the child labor constitutional amendment."
The Daily Worker printed a series of lurid illustrated articles on the subject, written by one, Harry Raymond, and appearing on January 11, 12, 13 and 14, 1937, and in The Sunday Worker, on January 10 and 17. In the issue of January 17, The Sunday Worker printed two complimentary letters concerning the Raymond articles, one from Gil Green, "in behalf of the National Committee of the Young Communist League," which he signed as national secretary, and the other from Jane Whitbread, signed as "assistant editor" of the American Child, monthly propaganda magazine of the National Child Labor Committee. Miss Whitbreads letter, addressed to Raymond himself, is as follows:
"I have just seen your first child labor articles which were left here during the lunch hour this noon. We appreciate the good place they are getting and the good and capable work that has gone into them and hope you will call on us for further material if you need it. The enlargements turned out very well, I think, and are effectively used."
Not only did President Roosevelt personally use his influence to induce ratification of the amendment but many others high in his administration intervened also. Even Mrs. Roosevelt made a trip to Richmond in 1934 while the Virginia legislature was in session, to see what could be done about it. However, the Virginia Senate rejected the resolution a little later by a vote of 30 to 9. Among others who have taken an active part in pressing the State legislatures for action is Aubrey Williams of the National Youth Administration.
Invariably since 1924 the annual report of the Chief of the Childrens Bureau winds up with propaganda for ratification of the "Child Labor" Amendment, as, for example, in 1939:
"We can keep children under the age of 16 years in school and provide proper safeguards for the gainful employment of older children through completing ratification of the child labor amendment and strengthening national and State legislative child labor standards and administrative procedures."
Although the Childrens Bureau has not yet acquired the vast control over all youths in the United States under 18 years of age which the as yet ungratified "Child Labor" Amendment was designed to confer upon it, the bureau did obtain new power over the employment of young persons in the Wage and Hour law of June 14, 1938, which it terms "The fair Labor Standards Act." This law is based on the assumed power of Congress to prohibit shipment in interstate commerce of the products of business and manufacturing concerns employing young workers below certain ages longer than certain hours, or paying less than established minimum wages. The power of Congress thus to control hours of work and wages in the States under the interstate commerce clause, long held to be non-existent, was denied by the Supreme Court in 1918, in holding the first federal child labor act of 1916 unconstitutional; but that ruling was reversed by the Court, under the new dispensation, in 1937.
Under the Wage and Hour law, the Childrens Bureau is administrator in respect of youthful workers under 18 years of age. None shall be employed under 14 years of age, and those only 14 to 16 may work, who can obtain a permit from the Childrens Bureau. Incidentally, the law fixes minimum wages. Children in farm families are exempted when not legally required to attend school, as also are movie children.
That the Childrens Bureau has real power under this law was demonstrated in the prosecution of two Chicago concerns in 1939 for permitting home work, in connection with which it was alleged 250 young members of families, under 16 years of age, took part without permits from the bureau. The companies had notified the heads of the families of the provisions of the law as to the employment of young persons, and had even appointed private inspectors to check on the work. The inspectors reported finding no violations. However, the companies were not only enjoined in a consent decree by the United States District Court from further employing such young persons, but, under the minimum wage provisions, were compelled to pay back wages to them amounting to $103,000.
“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”
Judge Learned Hand said: "Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it."
FEDERAL. Of or pertaining to, or founded upon and organized by a compact or act of union between separate sovereign states, aa (1) by a league for common interest and defense as regards external relations, the internal sovereignty of each member remaining unimpaired, as the Hanseatic League or the German Confederation; or (2) by a permanent act of union founded on the consent of the people duly expressed, constituting a government supreme within the sphere of the powers granted to it by that act of union, as the United States of America. – The constitution of the United States of America is of a very different nature than that of the German Confederation. It is not merely a league of sovereign States for their common defence against external and internal violence, but a supreme federal government or compositive State, acting not only upon the sovereign members of the Union, but directly upon all its citizens in their individual and corporate capacities. Wheaton Elements International Law § 52, p. 78[L. B. & CO. ‘66] – From 1776 to 1789 the United States were a confederation; after 1789 it was a federal nation. A Standard Dictionary of the English Language, Funk & Wagnalls Company, 1903.
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