Saturday, March 27, 2010

Child Labor Constitutional Amendment

America's Constitution: A BiographyI finished reading America's Constitution - A Biography by Akhil Reed Amar this weekend. It's a great history of the Constitution as a document from its ratification through the XXVIIth and latest Amendment. I found Amar's detailing of failed amendments in a footnote near the end to be particularly intriguing.

The Child Labor Amendment provided:
Section 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 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.
From 1924-1937, twenty-eight states ratified the amendment, falling short of the thirty-six then needed.

Interestingly, the Amendment contains no sunset clause. That means the 28 ratifications remain effective and should enough additional states ratify it, it becomes an amendment! Maybe then, Congress will have the authority to prohibit child labor and preempt state law. Wait... doesn't that already happen? As Amar notes:
"When, in the late 1930s and early 1940s, the New Deal Court itself began to recognize congressional power to regulate child labor and analogous aspects of the national economy, the proposal was in effect overtaken by events."
The Commerce Clause underwent some changes over the 20th century, none of which involved actually changing the clause itself, or extending it through amendment. I suspect we'll hear quite a bit about that issue as Americans debate whether the new health care law is Constitutional.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.