U.S. Supreme Court
HAMMER v. DAGENHART , 247 U.S. 251 (1918)
247 U.S. 251
HAMMER, U. S. Atty.,
DAGENHART et al.
Argued April 15 and 16, 1918.
Decided June 3, 1918.
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[247 U.S. 251, 252]
General Davis, of Washington, D. C., Mr. W. L. Frierson, Asst. Atty. Gen., and
Mr. Robert Szold, of Chicago, Ill., for appellant.
[247 U.S. 251, 259]
Messrs. Morgan J. O'Brien,
of New York City, W. M. Hendren and Clement Manly, both of Winston-Salem, N. C.,
W. P. Bynum, of Greensboro, N. C., and Junius Parker, of New York City, for
[247 U.S. 251, 268]
Mr. Justice DAY delivered the opinion of the Court.
A bill was filed in the United States District Court for the Western District
of North Carolina by a father in his own behalf and as next friend of his two
minor sons, one under the age of fourteen years and the other between the ages
of fourteen and sixteen years, employes in a cotton mill at Charlotte, North
Carolina, to enjoin the enforcement of the act of Congress intended to prevent
interstate commerce in the products of child labor. Act Sept. 1, 1916, 39 Stat.
675, c. 432 (Comp. St. 1916, 8819a- 8816f).
The District Court held the act unconstitutional and entered a decree
enjoining its enforcement. This appeal brings the case here. The first section
of the act is in the margin. 1 [247
U.S. 251, 269] Other sections of the act contain provisions for its
enforcement and prescribe penalties for its violation.
The attack upon the act rests upon three propositions: First: It is not a
regulation of interstate and foreign commerce; second: It contravenes the Tenth
Amendment to the Constitution; third: It conflicts with the Fifth Amendment to
The controlling question for decision is: Is it within the authority of
Congress in regulating commerce among the states to prohibit the transportation
in interstate commerce of manufactured goods, the product of a factory in which,
within thirty days prior to their removal therefrom, children under the age of
fourteen have been employed or permitted to work, or children between the ages
of fourteen and sixteen years have been employed or permitted to work more than
eight hours in any day, or more than six days in any week, or after the hour of
7 o'clock p. m., or before the hour of 6 o'clock a. m.?
The power essential to the passage of this act, the government contends, is
found in the commerce clause of the Constitution which authorizes Congress to
regulate commerce with foreign nations and among the states.
In Gibbons v. Ogdon, 9 Wheat. 1, Chief Justice Marshall, speaking for this
court, and defining the extent and nature of the commerce power, said, 'It is
the power to regulate; that is, to prescribe the rule by which commerce is to be
governed.' In other words, the power is one to control the means by which
commerce is carried on, which is [247 U.S. 251, 270]
directly the contrary of the assumed right to forbid commerce from moving and
thus destroying it as to particular commodities. But it is insisted that
adjudged cases in this court establish the doctrine that the power to regulate
given to Congress incidentally includes the authority to prohibit the movement
of ordinary commodities and therefore that the subject is not open for
discussion. The cases demonstrate the contrary. They rest upon the character of
the particular subjects dealt with and the fact that the scope of governmental
authority, state or national, possessed over them is such that the authority to
prohibit is as to them but the exertion of the power to regulate.
The first of these cases is Champion v. Ames, 188 U.S. 321
, 23 Sup. Ct. 321, the so-called Lottery Case, in which it was held that
Congress might pass a law having the effect to keep the channels of commerce
free from use in the transportation of tickets used in the promotion of lottery
schemes. In Hipolite Egg Co. v. United States, 220 U.S. 45 ,
31 Sup. Ct. 364, this court sustained the power of Congress to pass the Pure
Food and Drug Act (Act June 30, 1906, c. 3915, 34 Stat. 768 [Comp. St. 1916,
8717-8728]), which prohibited the introduction into the states by means of
interstate commerce of impure foods and drugs. In Hoke v. United States,
227 U.S. 308 , 33 Sup. Ct. 281, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E,
905, this court sustained the constitutionality of the so-called 'White Slave
Traffic Act' ( Act June 25, 1910, c. 395, 36 Stat. 825 [Comp. St. 1916,
8812-8819]), whereby the transportation of a woman in interstate commerce for
the purpose of prostitution was forbidden. In that case we said, having
reference to the authority of Congress, under the regulatory power, to protect
the channels of interstate commerce:
'If the facility of interstate transportation can be taken away from the
demoralization of lotteries, the debasement of obscene literature, the contagion
of diseased cattle or persons, the impurity of food and drugs, the like facility
can be taken away from the systematic enticement to, and the enslavement in
prostitution and debauchery of women, and, more insistently, of girls.'
[247 U.S. 251, 271] In Caminetti v. United States, 242 U.S.
470 , 37 Sup. Ct. 1 2, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168, we
held that Congress might prohibit the transportation of women in interstate
commerce for the purposes of debauchery and kindred purposes. In Clark
Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311
, 37 Sup. Ct. 180, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845, the power of
Congress over the transportation of intoxicating liquors was sustained. In the
course of the opinion it was said:
'The power conferred is to regulate, and the very terms of the grant would
seem to repel the contention that only prohibition of movement in interstate
commerce was embraced. And the cogency of this is manifest, since if the
doctrine were applied to those manifold and important subjects of interstate
commerce as to which Congress from the beginning has regulated, not prohibited,
the existence of government under the Constitution would be no longer possible.'
And concluding the discussion which sustained the authority of the Government
to prohibit the transportation of liquor in interstate commerce, the court said:
'... The exceptional nature of the subject here regulated is the basis upon
which the exceptional power exerted must rest and affords no ground for any fear
that such power may be constitutionally extended to things which it may not,
consistently with the guaranties of the Constitution embrace.'
In each of these instances the use of interstate transportation was necessary
to the accomplishment of harmful results. In other words, although the power
over interstate transportation was to regulate, that could only be accomplished
by prohibiting the use of the facilities of interstate commerce to effect the
This element is wanting in the present case. The thing intended to be
accomplished by this statute is the denial of the facilities of interstate
commerce to those manufacturers in the states who employ children within the
prohibited ages. The act in its effect does not regulate
[247 U.S. 251, 272] transportation among the states, but aims to
standardize the ages at which children may be employed in mining and
manufacturing within the states. The goods shipped are of themselves harmless.
The act permits them to be freely shipped after thirty days from the time of
their removal from the factory. When offered for shipment, and before
transportation begins, the labor of their production is over, and the mere fact
that they were intended for interstate commerce transportation does not make
their production subject to federal control under the commerce power.
Commerce 'consists of intercourse and traffic ... and includes the
transportation of persons and property, as well as the purchase, sale and
exchange of commodities.' The making of goods and the mining of coal are not
commerce, nor does the fact that these things are to be afterwards shipped, or
used in interstate commerce, make their production a part thereof. Delaware,
Lackawanna & Western R. R. Co. v. Yurkonis, 238 U.S. 439 ,
35 Sup. Ct. 902
Over interstate transportation, or its incidents, the
regulatory power of Congress is ample, but the production of articles, intended
for interstate commerce, is a matter of local regulation. 'When the commerce
begins is determined, not by the character of the commodity, nor by the
intention of the owner to transfer it to another state for sale, nor by his
preparation of it for transportation, but by its actual delivery to a common
carrier for transportation, or the actual commencement of its transfer to
another state.' Mr. Justice Jackson in Re Greene (C. C.) 52 Fed. 113. This
principle has been recognized often in this court. Coe v. Errol,
116 U.S. 517 , 6 Sup. Ct. 475; Bacon v. Illinois, 227 U.S.
504 , 33 Sup. Ct. 299, and cases cited. If it were otherwise, all
manufacture intended for interstate shipment would be brought under federal
control to the practical exclusion of the authority of the states, a result
certainly not contemplated by the [247 U.S. 251, 273]
framers of the Constitution when they vested in Congress the authority to
regulate commerce among the States. Kidd v. Pearson, 128 U.S. 1, 21
, 9 S. Sup. Ct. 6.
It is further contended that the authority of Congress may be exerted to
control interstate commerce in the shipment of childmade goods because of the
effect of the circulation of such goods in other states where the evil of this
class of labor has been recognized by local legislation, and the right to thus
employ child labor has been more rigorously restrained than in the state of
production. In other words, that the unfair competition, thus engendered, may be
controlled by closing the channels of interstate commerce to manufacturers in
those states where the local laws do not meet what Congress deems to be the more
just standard of other states.
There is no power vested in Congress to require the states to exercise their
police power so as to prevent possible unfair competition. Many causes may
co-operate to give one state, by reason of local laws or conditions, an economic
advantage over others. The commerce clause was not intended to give to Congress
a general authority to equalize such conditions. In some of the states laws have
been passed fixing minimum wages for women, in others the local law regulates
the hours of labor of women in various employments. Business done in such states
may be at an economic disadvantage when compared with states which have no such
regulations; surely, this fact does not give Congress the power to deny
transportation in interstate commerce to those who carry on business where the
hours of labor and the rate of compensation for women have not been fixed by a
standard in use in other states and approved by Congress.
The grant of power of Congress over the subject of interstate commerce was to
enable it to regulate such commerce, and not to give it authority to control the
[247 U.S. 251, 274] states in their exercise of the police power over
local trade and manufacture.
The grant of authority over a purely federal matter was not intended to
destroy the local power always existing and carefully reserved to the states in
the Tenth Amendment to the Constitution.
Police regulations relating to the internal trade and affairs of the states
have been uniformly recognized as within such control. 'This,' said this court
in United States v. Dewitt, 9 Wall. 41, 45, '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.' See Keller v. United States,
213 U.S. 138, 144 , 145 S., 146, 29 Sup. Ct. 470, 16 Ann. Cas. 1066;
Cooley's Constitutional Limitations (7th Ed.) p. 11.
In the judgment which established the broad power of Congress over interstate
commerce, Chief Justice Marshall said (9 Wheat. 203):
'They [inspection laws] act upon the subject, before it becomes an article of
foreign commerce, or of commerce among the states, and prepare it for that
purpose. They form a portion of that immense mass of legislation, which embraces
everything within the territory of a state, not surrendered to the general
government; all of which can be most advantageously exercised by the states
themselves. Inspection laws, quarantine laws, health laws of every description,
as well as laws for regulating the internal commerce of a state, and those which
respect turnpike roads, ferries, etc., are component parts of this mass.'
And in Dartmouth College v. Woodward, 4 Wheat. 518, the same great judge
'That the framers of the Constitution did not intend to restrain the states
in the regulation of their civil institutions, adopted for internal government,
and that [247 U.S. 251, 275] the instrument they
have given us is not to be so construed may be admitted.'
That there should be limitations upon the right to employ children in mines
and factories in t e interest of their own and the public welfare, all will
admit. That such employment is generally deemed to require regulation is shown
by the fact that the brief of counsel states that every state in the Union has a
law upon the subject, limiting the right to thus employ children. In North
Carolina, the state wherein is located the factory in which the employment was
had in the present case, no child under twelve years of age is permitted to
It may be desirable that such laws be uniform, but our federal government is
one of enumerated powers; 'this principle,' declared Chief Justice Marshall in
McCulloch v. Maryland, 4 Wheat. 316, 'is universally admitted.'
A statute must be judged by its natural and reasonable effect. Collins v. New
Hampshire, 171 U.S. 30, 33 , 34 S., 18 Sup. Ct. 768. The
control by Congress over interstate commerce cannot authorize the exercise of
authority not entrusted to it by the Constitution. Pipe Line Case,
234 U.S. 548, 560 , 34 S. Sup. Ct. 956. The maintenance of the authority
of the states over matters purely local is as essential to the preservation of
our institutions as is the conservation of the supremacy of the federal power in
all matters entrusted to the nation by the federal Constitution.
In interpreting the Constitution it must never be forgotten that the nation
is made up of states to which are entrusted the powers of local government. And
to them and to the people the powers not expressly delegated to the national
government are reserved. Lane County v. Oregon, 7 Wall. 71, 76. The power of the
states to regulate their purely internal affairs by such laws as seem wise to
the local authority is inherent and has never been surrendered to the general
government. [247 U.S. 251, 276] New York v. Miln,
11 Pet. 102, 139; Slaughter House Cases, 16 Wall. 36, 63; Kidd v. Pearson,
supra. To sustain this statute would not be in our judgment a recognition of the
lawful exertion of congressional authority over interstate commerce, but would
sanction an invasion by the federal power of the control of a matter purely
local in its character, and over which no authority has been delegated to
Congress in conferring the power to regulate commerce among the states.
We have neither authority nor disposition to question the motives of Congress
in enacting this legislation. The purposes intended must be attained
consistently with constitutional limitations and not by an invasion of the
powers of the states. This court has no more important function than that which
devolves upon it the obligation to preserve inviolate the constitutional
limitations upon the exercise of authority federal and state to the end that
each may continue to discharge, harmoniously with the other, the duties
entrusted to it by the Constitution.
In our view the necessary effect of this act is, by means of a prohibition
against the movement in interstate commerce of ordinary commercial commodities
to regulate the hours of labor of children in factories and mines within the
states, a purely state authority. Thus the act in a two-fold sense is repugnant
to the Constitution. It not only transcends the authority delegated to Congress
over commerce but also exerts a power as to a purely local matter to which the
federal authority does not extend. The far reaching result of upholding the act
cannot be more plainly indicated than by pointing out that if Congress can thus
regulate matters entrusted to local authority by prohibition of the movement of
commodities in interstate commerce, all freedom of commerce will be at an end,
and the power of the states over local matters may be eliminated, and thus our
system of government be practically destroyed. [247 U.S.
251, 277] For these reasons we hold that this law exceeds the
constitutional authority of Congress. It follows that the decree of the District
Court must be
Mr. Justice HOLMES, dissenting.
The single question in this case is whether Congress has power to prohibit
the shipment in interstate or foreign commerce of any product of a cotton mill
situated in the United States, in which within thirty days before the removal of
the product children under fourteen have been employed, or children between
fourteen and sixteen have been employed more than eight hours in a day, or more
than six days in any week, or between seven in the evening and six in the
morning. The objection urged against the power is that the States have exclusive
control over their methods of production and that Congress cannot meddle with
them, and taking the proposition in the sense of direct intermeddling I agree to
it and suppose that no one denies it. But if an act is within the powers
specifically conferred upon Congress, it seems to me that it is not made any
less constitutional because of the indirect effects that it may have, however
obvious it may be that it will have those effects, and that we are not at
liberty upon such grounds to hold it void.
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. It would
not be argued today that the power to regulate does not include the power to
prohibit. Regulation means the prohibition of something, and when interstate
[247 U.S. 251, 278] commerce is the matter to be regulated I cannot doubt
that the regulation may prohibit any part of such commerce that Congress sees
fit to forbid. At all events it is established by the Lottery Case and others
that have followed it that a law is not beyond the regulative power of Congress
merely because it prohibits certain transportation out and out. Champion v.
Ames, 188 U.S. 321, 355 , 359 S., 23 Sup. Ct. 321, et seq.
So I repeat that this statute in its immediate operation is clearly within the
Congress's constitutional power.
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 in a matter upon which I
have admitted that they are free from direct control. I should have thought that
that matter had been disposed of so fully as to leave no room for doubt. I
should have thought that the most conspicuous decisions of this Court had made
it clear that the power to regulate commerce and other constitutional powers
could not be cut down or qualified by the fact that it might interfere with the
carrying out of the domestic policy of any State.
The manufacture of oleomargarine is as much a matter of State regulation as
the manufacture of cotton cloth. Congress levied a tax upon the compound when
colored so as to resemble butter that was so great as obviously to prohibit the
manufacture and sale. In a very elaborate discussion the present Chief Justice
excluded any inquiry into the purpose of an act which apart from that purpose
was within the power of Congress. McCray v. United States, 195 U.S.
27 , 24 Sup. Ct. 769, 1 Ann. Cas. 561. As to foreign commerce see Weber
v. Freed, 239 U.S. 325, 329 , 36 S. Sup. Ct. 131, Ann. Cas.
1916C, 317; Brolan v. United States, 236 U.S. 216, 217 , 35
S. Sup. Ct. 285; Buttfield v. Stranahan, 192 U.S. 470 , 24
Sup. Ct. 349. Fifty years ago a tax on state banks, the obvious purpose and
actual effect of which was to drive them, or at least [247
U.S. 251, 279] their circulation, out of existence, was sustained,
although the result was one that Congress had no constitutional power to
require. The Court made short work of the argument as to the purpose of the Act.
'The Judicial cannot prescribe to the Legislative Departments of the Government
l mitations upon the exercise of its acknowledged powers.' Veazie Bank v. Fenno,
8 Wall. 533. So it well might have been argued that the corporation tax was
intended under the guise of a revenue measure to secure a control not otherwise
belonging to Congress, but the tax was sustained, and the objection so far as
noticed was disposed of by citing McCray v. United States; Flint .v Stone Tracy
Co., 220 U.S. 107 , 31 Sup. Ct. 342, Ann. Cas. 1912B, 1312.
And to come to cases upon interstate commerce notwithstanding United States v.
E. C. Knight Co., 156 U.S. 1 , 15 Sup. Ct. 249, the Sherman
Act (Act July 2, 1890, c. 647, 26 Stat. 209) has been made an instrument for the
breaking up of combinations in restraint of trade and monopolies, using the
power to regulate commerce as a foothold, but not proceeding because that
commerce was the end actually in mind. The objection that the control of the
States over production was interfered with was urged again and again but always
in vain. Standard Oil Co. v. United States, 221 U.S. 1, 68 ,
69 S., 31 Sup. Ct. 502, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; United
States v. American Tobacco Co., 221 U.S. 106, 184 , 31 S.
Sup. Ct. 632; Hoke v. United States, 227 U.S. 308, 321 , 322
S., 33 Sup. Ct. 281, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905. See finally
and especially Seven Cases of Eckman's Alterative v. United States,
239 U.S. 510, 514 , 515 S., 36 Sup. Ct. 190, L. R. A. 1916D, 164.
The Pure Food and Drug Act which was sustained in Hipolite Egg Co. v. United
States, 220 U.S. 45, 57 , 31 S. Sup. Ct. 364, 367 (55 L. Ed.
364), with the intimation that 'no trade can be carried on between the States to
which it [the power of Congress to regulate commerce] does not extend,' applies
not merely to articles that the changing opinions of the time condemn as
intrinsically harmful but to others innocent in themselves, simply on the ground
that the order for them was induced by a preliminary fraud. Weeks v. United
States, 245 U.S. 618 , 38 Sup. Ct. 219, 62 L. Ed . --. It
does not matter whether the supposed [247 U.S. 251, 280]
evil precedes or follows the transportation. It is enough that in the opinion of
Congress the transportation encourages the evil. I may add that in the cases on
the so-called White Slave Act it was established that the means adopted by
Congress as convenient to the exercise of its power might have the character af
police regulations. Hoke v. United States, 227 U.S. 308, 323
, 33 S. Sup. Ct. 281, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905; Caminetti
v. United States, 242 U.S. 470, 492 , 37 S. Sup. Ct. 192, L.
R. A. 1917F, 502, Ann. Cas. 1917B, 1168. In Clark Distilling Co. v. Western
Maryland Ry. Co., 242 U.S. 311, 328 , 37 S. Sup. Ct. 180, L.
R. A. 1917B, 1218, Ann. Cas. 1917B, 845, Leisy v. Hardin, 135 U.S.
100, 108 , 10 S. Sup. Ct. 681, is quoted with seeming approval to the
effect that 'a subject matter which has been confided exclusively to Congress by
the Constitution is not within the jurisdiction of the police power of the State
unless placed there by congressional action.' I see no reason for that
proposition not applying here.
The notion that prohibition is any less prohibition when applied to things
now thought evil I do not understand. But if there is any matter upon which
civilized countries have agreed-far more unanimously than they have with regard
to intoxicants and some other matters over which this country is now emotionally
aroused-it is the evil of premature and excessive child labor. I should have
thought that if we were to introduce our own moral conceptions where is my
opinion they do not belong, this was preeminently a case for upholding the
exercise of all its powers by the United States.
But I had thought that the propriety of the exercise of a power admitted to
exist in some cases was for the consideration of Congress alone and that this
Court always had disavowed the right to intrude its udgment upon questions of
policy or morals. It is not for this Court to pronounce when prohibition is
necessary to regulation if it ever may be necessary-to say that it is
permissible as against strong drink but not as against the product of ruined
lives. [247 U.S. 251, 281] 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. The public policy of the United States is shaped with a view to the
benefit of the nation as a whole. If, as has been the case within the memory of
men still living, a State should take a different view of the propriety of
sustaining a lottery from that which generally prevails, I cannot believe that
the fact would require a different decision from that reached in Champion v.
Ames. Yet in that case it would be said with quite as much force as in this that
Congress was attempting to intermeddle with the State's domestic affairs. The
national welfare as understood by Congress may require a different attitude
within its sphere from that of some self-seeking State. It seems to me entirely
constitutional for Congress to enforce its understanding by all the means at its
Mr. Justice McKENNA, Mr. Justice BRANDEIS, and Mr. Justice CLARKE concur in
[ Footnote 1 ] That no producer, manufacturer, or dealer
shall ship or deliver for shipment in interstate or foreign commerce any article
or commodity the product of any mine or quarry, situated in the United States,
in which within thirty days prior to the time of the removal of such product
therefrom children under the age of sixteen years have been employed or
permitted to work, or any article or commodity the product of any mill, cannery,
workshop, factory, or manufacturing establishment, situated in the United
States, in which within thirty days prior to the removal of such product
therefrom children under the age of fourteen years have been employed or
permitted to work, or children between the ages of fourteen years and sixteen
years have been employed or permitted to work more than eight hours in any day,
or more t an six days in any week, or after the hour of seven o'clock
postmeridian, or before the hour of six o'clock antemeridian.'