Child Labor as Involuntary Servitude: The Failure of Congress To Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century

Abstract

Numerous times in the early twentieth century, Congress considered the problem of child labor. Child labor’s opponents bemoaned the harsh conditions under which children toiled, and frequently referred to the practice as “child slavery.” Yet although Congress twice succeeded in legislating on the topic, both times it found itself stymied by the Supreme Court, which struck down the statutes as exceeding congressional authority. In response, Congress passed the Child Labor Amendment to the Constitution, but it failed to be ratified. It was only after the 1937 reversal in Supreme Court Commerce Clause jurisprudence that the Court sustained a federal child labor law. Curiously, Congress never attempted to legislate against child labor by characterizing the practice as a form of involuntary servitude prohibited by the Thirteenth Amendment. Why didn't Congress seize upon this potential basis?

This Article addresses that question. First, it discusses the constitutional viability of the Thirteenth Amendment approach in the early twentieth century. Then, examining the history of the movement against child labor, the Article reveals that Congress simply overlooked the approach in the movement’s early stages in light of more salient precedent involving the Commerce and Taxing Clauses. By the time the approach was proposed in the House Judiciary Committee in 1922, Congress had already shifted attention to passing the Child Labor Amendment. Twice chagrined by the Supreme Court, members of Congress believed the Court would reject any attempt to limit child labor under existing constitutional powers. Consequently, the Thirteenth Amendment argument never advanced to the full body of either the House or the Senate. Finally, the Article explains that the approach might have been politically viable if considered earlier, before the Court struck down the first federal child labor statute. The Article concludes by assessing implications that a Thirteenth Amendment basis for federal child labor legislation might have had for the development of Progressive-era labor legislation.

Keywords: constitutional law, child labor, Thirteenth Amendment, involuntary servitude, labor autonomy

JEL Classification: K, K1, K19, K3, K31, K32, K4, J49