Are Child Labor Laws Unconstitutional in The Tea Party World?

Submitted by Lawrence Rafferty(rafflaw), Guest Blogger


We have seen and heard on many occasions the Tea Party claim that it desires Congress and the Federal Government to follow the letter of the Constitution instead of reaching beyond the four corners of the document.  With that thought in mind, I was intrigued by a recent article on the Think Progress site that reviewed the You Tube video claims made by U.S. Senator Mike Lee of Utah, that Congress’ passage of laws outlawing and restricting Child Labor, was unconstitutional.

Now, I know that the Tea Party has sometimes gotten a bad reputation for making silly claims under the Tenth Amendment.  Those claims actually spurred a new term or title, “Tenther”.  But, I have to admit that Senator Lee has really gone way beyond the Tenther label with this false claim about the constitutionality of the child labor laws within the Fair Labor Standards Act of 1938.  Here is a link to a brief description of how the FLSA deals with child labor and the act itself:   &

Senator Lee discusses his outrageous claim in a YouTube presentation that attempts to use the 1918 Supreme Court case of Hammer v. Dagenhart as his evidence that Congress has gone too far.  Unfortunately for Senator Lee, the Hammer case was specifically overruled in 1941 by a unanimous Supreme Court in 1941 in U.S. v. Darby.   I guess Senator Lee didn’t want to let minor details get in the way of “proving” his claim.  The part that I just don’t understand about Senator Lee is why does he want to return to the day when children were forced to work at too early of an age and under horrible conditions?  From what I can tell from his video lectures which are found in the aforementioned Think Progress link, he claims that the State should be making those decisions and not the Federal Government or Judiciary.  Why would he make those claims and not tell the listener that the case he is citing was overruled over 60 years ago?  What other laws would be unconstitutional in his world?

Lawrence Rafferty, (rafflaw) Guest Blogger.

136 thoughts on “Are Child Labor Laws Unconstitutional in The Tea Party World?”

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  2. rafflaw,

    Did you know that every state in the Union has statutes that are more restrictive than the federal law when it comes to child labor and working conditions? You couldn’t! If you did, you would know that Sen. Lee’s efforts would not result in a “return to the day when children were forced to work at too early of an age and under horrible conditions”. That would require changes to state laws. Has Sen. Lee proposed any changes to state laws that would result in a “return to the day when children were forced to work at too early of an age and under horrible conditions”?

  3. BBB,

    Keep the sentences in context and you won’t be confused …
    “…they don’t want you or your Republican buddies. They know what you did to the Christian Right. (If you keep the sentences in context the first you … your Republican buddies is the context upon which the second you (collective) is based.

    One of the biggest problems with a discussion are those who are busy constructing their reply while reading someone else’s words. They miss half the intent and screw up the context because they are so busy forming their reply thus missing a great deal of the other’s meaning.

    Here’s another instance: ““true Tea Baggers don’t hang out with Tea Partiers”

    Which one is which? How do you distinguish one from the other?”

    If you had thoroughly read what I wrote you wouldn’t have had to ask that question.

    However, I’m beginning to suspect that your motivation is simply to defend. As such, no matter what is written in response, you will dismiss or miss or spin the other’s words. As such, I believe you have picked a political stance that fits your comfort zone and I don’t expect you to do anymore than spout the “line”.

    It’s no fun discussing something with someone who speaks as a commercial … the same line over and over and over and over and over and over and over and over and over and over and ….

  4. BBB,

    “You, however, appear to be more interested in telling the Justices that they got it wrong because you don’t think the correctly interpreted the Constitution.”

    Because they didn’t. It’s a fascist abomination of a case that previous SCOTUS sessions would have laughed out of court for making corporations into the equivalent of actual persons. It’s like saying your desk is a person. Corporations are as much a construct as furniture.

    I don’t know everything. Just more than you. I certainly know enough to know that this: “corporations existed in the time of the Founders. Had they meant this to be a corporate oligarchy? They could and would have chosen the words “We the Corporate” or “We the Legal Fiction”. Corporations are not real people. Their personality is a construct originally meant to allow them to own property and avail themselves of the criminal and civil courts. The corporate form was not a carte blanc invitation to participate in all the rights enjoyed by individual natural citizens.”? Is the truth.

    Words have meanings. Expanding corporate personality is as big an abomination against the Constitution and human and civil rights as the expanding unitary Executive. Just because it doesn’t fit in with your “greed is good” world view? Too bad.

    And convince you? You said prove what the Founders were ideologically, so I did by the very construction and wording of the Constitution. Which inconveniently for you are based largely upon liberal ideologies even though they themselves were syncretic in their personal beliefs. That you are too dense to realize that human and civil rights are in the liberal tradition just shows a huge gap in your education. Freedom of speech, freedom of and from religion, the right to bear arms, the right to a jury trial, to confront witnesses and to be free of cruel and unusual punishment are all based on the concept of egalitarianism and that the individual has certain inalienable human and civil rights that the state should not transgress. Since the term egalitarianism is derived from the French word égal which means “equal”, that means – as Jefferson put it – “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Notice he doesn’t mention the pursuit of unlimited profit or to be free from governance as required by justice. Notice too that equality/egalitarianism is a cornerstone of liberalism along with democracy, free and fair elections, human rights, civil rights and a secular state. If you can’t recognize that those rights I listed from the Constitution are civil (and human) rights? Then you are simply delusional in your desire for self-rationalization.

    As to the Magna Carta? It was the first document to proclaim that men had certain rights that could not be challenged by the monarchy and that the monarch was bound by the rule of law in the dispensation of justice, i.e. no longer able to use the judiciary as a tool of imperial edict. In 1215, that was a very very liberal proposition and clearly reflected in the Separation of Powers Doctrine that created counter-balancing branches of government to act as checks on tyranny. Also seen in the concept of civil rights if you can grok that.

    You should learn to do your own homework, sport. Then again, when you do your own, you come back with “reliable” sources like Murdoch’s WSJ and the the Moonies newspaper. Your intellectual laziness isn’t my problem, but yours. Same with your seeking sources that appeal to your confirmation bias. It’s a common problem among partisan hacks. You have low IC scores in a high IC world.

    As to my blood pressure? Telling historical revisionists, the blatantly wrong and liars they are wrong is much better for it than simply suffering fools in silence, Mr. Tell Me I Shouldn’t Address Others. Don’t make stupid assertions and I won’t call you stupid. Don’t lie and I won’t call you liar. Don’t try to re-write history and I won’t call you a historical revisionist. Don’t act like a corporatist and I won’t call you a corporatist.

    So far you’ve shown a disposition to lie, exaggerate and distort history to rationalize your partisan (and corporatist) ideology.

    Stupid? I haven’t called you stupid. I’ve said you were wrong. However . . .

    Stupid is as stupid does, Forrest.

  5. Having read what I can find about child labor laws and Senator Lee’s view, I, personally, can find not a trace of a shred of factual, substantial evidence that Senator Lee is in any way willing to return to the conditions under which children were forced at too young an age to work in unduly dangerous conditions.

    Such conditions were, I have no doubt, a time in many ways terrible for children and their families, I would use every decent word I can ever find to preclude that.

    Nevertheless, I have served as a home-school consultant, working with a child and family, to give a decent and useful education to a child; the education was in safe circumstances and was vocational such that the academic skills needed for a productive adult life as a responsible citizen were incorporated into the vocational education.

    That family had the circumstances which allowed this vocational education to be accomplished at home, in a fully lawful way. Many families do not have such home circumstances, and the vocational education that particular child most benefited from would have been unlawful in any employment situation. The work involved learning carpentry skills at a very high level.

    My dad’s dad was a master carpenter as well as a minister, who taught my dad the carpentry trade, who taught me.

    I know of children who would greatly benefit from the sort of education I got and this aforementioned child got.

    Before I was ten, I was trained by my dad in the safe use of power tools, table saw, jig saw, drill press, and many other tools. He trained me well, I have over 60 years of using a great variety of power tools without ever once getting injured using them.

    Before my wife and I adopted our son, in 1979, when he was eleven, I had become a Chicago Licensed Supervising General Electrician and Registered Electrical Contractor, doing some specialized commercial-industrial electrical contracting which required an engineering education in addition to being a licensed electrician. To my dismay, I could not take our son along, so he could learn the basics of the electrical trade, because the definition of the work, not its actual nature, made it illegal for me to have him with me. In this way, the child labor laws were terribly damaging to our son. I could not legally pass on my trades as my dad had to me, as his dad had to him.

    That, I deem to have been disastrous child abuse mandated by law.

  6. BIL,

    You are confusing the holding of the Court (which I believe to be inline with the Constitution) with what you (and I) think the law should be. My reaction is to change the law/amend the Constitution to conform to what I think the law should be. You, however, appear to be more interested in telling the Justices that they got it wrong because you don’t think the correctly interpreted the Constitution.

    The difference in our approaches is that I don’t think I know everything. I don’t jump up on a soap box and tell everybody else how stupid they are. You might have fun doing that, but it isn’t likely to do much more than raise your blood pressure.

    Taxes: I’m in favor of replacing income tax with sales tax. There are many places we could change the current tax that would permit benefits for working harder (instead of putting the person working two jobs into a higher tax bracket). I am not opposed to increasing the tax paid by the wealthy.

    The Separation of Powers is a decidely liberal doctrine? You’ll have to do more than compare it to the Magna Carta to do that.

    “Freedom of speech, freedom of and from religion, the right to bear arms, the right to a jury trial, to confront witnesses and to be free of cruel and unusual punishment? All liberal ideals.”

    You’ll have to do more than just state a claim to convince me that they are all decidedly liberal doctrines.

    I’m glad to see that we agree on the constitutionality of the National Health Care Act as it relates to the mandated payment to private insurance companies.

    I’m tired. I’m taking the night off.

  7. Brian,

    Only because you are possibly an exception but not the rule when it comes to human behavior. Even at 18, the age many states consider minimum competence to enter into contract although some use 21, most humans are thinking primarily with their hormones, not their brains. There is also the legal solution of emancipated minors which can be granted full contractual capacity.

  8. One consequence of revoking the present child labor law structure would be that a contemporary autistic child might be able to start a real business, as I did, without needing to be concerned about the silliness of an suitably astute child being defined as unable to make and abide with a valid contract.

    I made, understood, and performed to many valid contracts knowing and understanding what I was doing, starting when I was ten. And I was never forced to do anything in my own business which was against my will, or, given the adequacy of my education (regular public school attendance with almost all of my actual education accomplished at home in parallel with public school; my mother studied nursing, then graduated from college with a teaching degree, then did graduate study at the University of North Dakota, Grand Forks. She was a very qualified teacher in public school, then became a home school teacher of remarkable capability.

  9. rafflaw,

    “why does he want to return to the day when children were forced to work at too early of an age and under horrible conditions?”

    To ask why he wants to, is to say that he wants to, but you don’t understand the reason why. You claim that that is his intention. You did not say, ‘Does he understand that repealing the law could return to those days’, nor did you say ‘I wonder if he wants to return to those days’. You determined what his intention was and desired to know his motivation. You failed to consider a non-defamatory conclusion that his interest is in restoring to the states that which was reserved to the states.

    I will not apologize for quoting you directly and correctly. You may not have meant what you said, but you did say what I accuse you of saying.

  10. “Health insurance paid to private insurers exceeds the authority granted by the Constitution. That’s not just my opinion. That’s the opinion of 26 state attorneys general. And that number will continue to increase. But I bet you and BIL will claim that the provision is legal.”

    And you’d be wrong.

    The Federal government could have and should have established a nationalized single-payer system under the Commerce Clause and the Sherman Anti-trust Act, but telling the States they have to buy insurance from one of five private providers?

    That’s just more corporate welfare that does nothing to address the problems of insurance inequity created by allowing the States to patchwork regulate the insurance industry (and consequently game the system).

    The more assumptions you make, the more of an ass you make yourself, BBB.

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