Reading The Keating–Owen Child Labor Act of 1916 | A Primary Source Close Read w/ BRI

0:04 Hello and welcome to another edition. Bill of Rights Institute’s Primary Source Close Reads. My name is Kirk Higgins, and I am fortunate enough today to be joined by my colleague Laura Vlk. Hi everybody. So, Laura, I’ve coaxed you out from behind your computer where you talk with our Teacher Council quite a bit in our entire teacher network because A,

0:27 I always love talking to you, and B, I just wanted to give every chance to find out a little bit more about what you do for the Institute. So by way of introduction, can you just tell us a little bit what you do to support the work of the Institute? Yeah absolutely. So in my role as Director of Educator Engagement, I am really involved with everything that our organization does that supports teachers.

0:49 So that is from the very beginning where we might meet you at a conference or at a seminar that we’re putting on with our professional development team. I also, as Kirk mentioned, oversee our Teacher Council and any of our new initiatives, which right now we’re including our Badging and our Micro credentialing in that. So anything that the Bill Rights Institute is putting in front of teachers,

1:13 I probably have a hand in putting in front of in some way. So I love my job. I get to interact with so many great and really fascinating teachers on a week to week basis, and I get to highlight all the great work that the rest of our organization does day to day. Yeah, and I’m grateful for all the work that you do, Laura.

1:33 And for those who don’t know who may just tune in on YouTube, we do professional development programs throughout the country. We do online professional development now sort of doing more and more of that in addition to producing curricular resources and all kinds of stuff. So if you’re looking for more information, reaching out to Laura is a great way to get it. Laura, today, speaking of engaging,

1:54 I wanted to get you on here because I know that, working at the Bill of Rights Institute it’s hard not to love history and love talking about constitutional principles and documents and things. So I kind of give you carte blanche to pick a document that you wanted to talk with me, and you picked one that’s really interesting and one that I had not read closely before this. And so I’m really excited to dive into it. But could you just say, what’s the document you’ve chosen for us today?

2:17 We are going to be looking at the Keating-Owen Act of 1916. And I picked this document because I often wonder what kind of a position I would have taken if I were alive during the Progressive Era. I myself started college as a social work major and really kind of volunteer and love those types of causes that relate

2:38 to women and children and education and things like that. Probably a big reason why I like being at the Bill of Rights Institute for a career. But I think the tensions that arise from this era are really fascinating and particularly those that relate to the state and federal government and both kind of trying to vie for their different realms and spheres of influence.

2:59 So this document is going to highlight that for us. Yeah absolutely. Well, let’s dive right into it. Yeah. So the Keating-Owen Child Labor Act of 1916, I think this is the first time that we’ve actually looked at just a piece of legislation on Primary Source Close Reads. So this is exciting, but it’s one that I agree with you.

3:21 I think it’s interesting because it shows really the complexity of how things get done in our constitutional system. So that’s kind of the central question I’m thinking about today. I think we often think about these big initiatives and big movements, but really getting down into how social change occurs in a constitutional system is really interesting and can be really frustrating at times.

3:42 But also there’s kind of a method to the madness and unpacking that is something I think is really interesting. So by way of a little bit of historical context, so it’s 1916. So this is sort of in the midst of the Progressive Era. And the Progressive Era was from about 1896 to 1916 is generally when historians put that period of time.

4:04 And it’s a period of great social change in this period of people turning and looking at society and how we can improve society. And also questions about the role of government merge from that too. What is the government’s role in regulating the behavior of citizens and in making sure that things are functioning in a way that’s beneficial for everyone?

4:26 So you have politicians like Theodore Roosevelt and Woodrow Wilson who were all in sort of this progressive cast, who are becoming more and more interested in the social reform movements. And so one of those social reform movements is targeting child labor. And so you have the emergence of this committee, the National Child Labor Committee, who is really focused on this

4:48 and advocating for the improvement of working conditions for children and really getting children out of just the horrific conditions they’re in. And one gentleman who is a photographer who was working with this committee who’s really highlighting this was named Lewis Hine, Lewis Hine went around the country taking pictures of these working conditions. There’s several famous pictures of children in mind.

5:10 And here we have a picture of two children in Indianapolis. And I think being from the Indianapolis area, this kind of spoke to me for that reason. It’s labeled that they’re in a glassworks at midnight. And so you got to imagine smoky, dusty, hot. It’s midnight. You’ve got these two sort of childish faces staring at us through this camera.

5:32 So, Laura, I know that this was something that really attracted you. What strikes you about this image sort of what stands out. Yeah, I think you kind of already alluded to it. But my thought first is probably the condition of their lungs. I mean, I just think about the smoke and the different chimneys and different things that we’re seeing that it’s certainly not good working conditions.

5:53 But then I also think just about probably the age of them. I mean, those are probably 10, 12, maybe 14 year old boys and just how really different we think of children now than they did 120 some years ago. Even. That’s the age of most middle school and high school students now.

6:16 And just how many more opportunities are available to children today than these boys had. Yeah absolutely. And it’s really striking seeing they are very clearly children in this image.

6:37 The world has become more industrialized and seeing these children as society is kind of having this conversation about what do we do? How do we change and adapt to these conditions? I think this is a powerful example of how that change begins to emerge. We have the Keating-Owen Act right. So we have two gentlemen.

6:58 We have Edward Keating, who is a member of the House Representatives from Colorado. We have Robert Latham Owen, who is a senator from Oklahoma. And as often happens, this bill was introduced sort of at the same time by a member of the House and a member of the Senate. And so then we get from that the Owen-Keating Act. And so let’s dive in and take a look at what it had to say.

7:24 So this is the actual text of the act and it reads as about as exciting as the text of a piece of legislation does. But what immediately struck me when I was reading this, first of all, was that it’s fairly short. So we do only look at excerpts here. But compared to today’s standards, this bill is only like two pages long.

7:45 It’s really short and it’s also very explicit about what it does. And so I think that it says directly upfront to prevent interstate commerce and the products of child labor and for other purposes, they get right at it. But what stood out to you, Laura, especially this is sort of the beginning of the act. Was there anything in this language that really jumped out to you?

8:09 Yeah. So I think I agree. Certainly it’s really explicit. There’s a little bit of repetition as it goes through. But really this first paragraph, you’re seeing essentially the crux of their argument that they are wanting to prevent goods from traveling across state lines that are produced where there are children between the ages of 14

8:31 and 16 working in conditions on those goods. And I think it’s pretty easy to read. And I like that the whole act is only six sections, so you certainly could read the whole thing and understand it, like you said, as opposed to some of the modern legislation that we see. Yeah absolutely.

8:52 Within that being the Bill of Rights. And Stuart, we’re always thinking about the constitutional mechanisms for how these bills get passed. It’s pretty clear where they think their authority lies. And so there’s a sort of implicit argument about why they have the authority to do this. And first, I think it’s interesting we can sometimes take it for granted when we’re thinking about laws and legislation

9:14 that, oh, yeah, this is what Congress does, it makes laws. But the fact that here there’s this very clear reason not only why they’re doing it, so we have this to prevent interstate commerce of products and labor, but then they go into that no producer, manufacturer, dealers shall ship or deliver for shipment in interstate or forum commerce any article or commodity

9:37 of the product of any mine or quarry situation in the United States. And and on on it goes. But it says all of this, and in detailing out all of these different things, it’s really trying to delineate where their authority is and why it is that they’re doing this and what is now going to be prohibited by this law.

10:00 And I think contextually, I think what we’re looking at too, is the Department of labor is established in 1913, and this is probably one of their first sort of times that they’re trying to exercise their power and start to figure out what that office is going to oversee. So certainly they’re trying to lay that out, kind of like the job description for the individual.

10:21 And look further on in this act, it’s going into the Secretary of labor and his designees can go in and inspect. And I think they’re really trying to carve out what that looks like for that position. Yeah absolutely. And here too, they’re saying they’re giving that stipulation of the ages that will be enforced on this.

10:42 Right. So this is where you see the 14 between the ages of 14 and 16. In here, they’re starting to say, like, yeah, you can begin working then, but it’s going to be a little bit limited capacity. But again, like you were saying, really are thinking about what it means to be a child. In this period I think is really interesting. And then again on a broader context, we’re already assuming this is a piece of federal legislation.

11:03 So we’ve already taken the assumption that look at the, the federal government that needs to intervene here, or at least that’s the position of keeping an eye on. We’ll get into that a little bit more in a minute. But it’s interesting that they’re implicitly, again arguing this is a problem, this is how we’re going to solve it because we have this ability to regulate interstate commerce and now here are the rules for doing so.

11:24 Yes, and I think really essentially what they’re trying to do here is they’re trying to start to protect children as a different class and get into that kind of there’s something different about a child that is in the age under 16 that we want to separate from the rest of society. And they don’t go very far in this particular piece of legislation.

11:45 But we know that Progressive often tried to use legislation to do that, to accomplish their needs. And so I think this is sort of the beginning of what we’re starting to understand is kind of modern childhood and getting children more freedom to have what? To do things that are safe and appropriate for their age group.

12:06 Yeah absolutely. And so moving on and we’re already to the end of the document here. I just pulled a couple of sections because I thought that they were interesting. So you had mentioned Section two a little earlier, which is, okay, so we have this bill. What does that actually mean? Because you can make any declaration you want, but how are we going to enforce it? And here they pretty clearly delineate that it’s the executive branch through the Attorney General and the Secretary

12:29 of Commerce and the Secretary of labor that is going to enforce this law. And in Section Six, I think it’s interesting because we’re looking at that not only are they wanting to say that a person cannot do this, but they’re struggling with you’ve had all the trusts come up in corporations and everything else. So it’s alluding to sort of a larger

12:50 argument that is occurring in the nation at this time. I think it’s an interesting contextual point, but then also that it’s important that they’re able to hold accountable these larger organizations that are going to be potentially employing children in these capacities. Yeah exactly. So we’re seeing that like you said in Section Six, when they’re defining

13:11 person as not only an individual but also a corporation. And if you read further up in the act, it’s talking about the Secretary of Labor and any person designated by him, which is certainly the individual context. But then they’re also using person as far as the actual entities that are employing the children or the labor force.

13:31 So yeah, absolutely, we’re seeing that borne out within the document and I think you alluded to it. But it certainly is an example of where Congress has been delegating authority to another branch to actually enforce this. So I think we’re starting to see the progressive way in this document and it’s probably one of the earlier examples that we have of that.

13:51 And I like that. Yeah, that’s really interesting and I was going to touch on that too, because you’re seeing here the changing functioning of government. So if government’s role was before pretty tightly constrained. Now if it’s going to be taking on these larger societal issues, again, we’re thinking at the federal level, it’s important to distinguish between what the states are doing, what the federal government is doing.

14:13 At the federal level, there’s now needing to in order to wrap its arms around it’s not as though the Secretary of labor can go to every mill and mine and plant in the nation to enforce this kind of thing. So if that is going to happen, they’re going to need designees that are going to be enforcing this. So I think within that is you’re seeing the growth of the administrative state that comes out of the progressive era.

14:39 Right yeah. And Kurt, the other thing I think we want to just be mindful of is how the progressive really viewed the state. And I think this is one of those circumstances when there is no real state provision in this and we certainly see just sort of that move right to the federal government. And I think, again, we’re not going to answer this right now.

15:02 But one of the questions I think that is really just fascinating to explore is do these really big problems need big solutions? And would there have been a way to get around some of these really horrific conditions without having federal intervention? And certainly history has not written it that way. And so we’ve seen really the progression of this through courts and I know we’re

15:24 going to talk about that in just a second, but through court cases and additional legislation that has led us to where we are in the 21st century. So, yeah, that becomes the question that’s raised in this case of Hammer v. Dagenheart that comes up in 1918. So does the Congressional Act violate the Commerce Clause, the 10th Amendment? Or they also threw in the Fifth Amendment. I’m going to focus only

15:46 on the Commerce Clause in the 10th Amendment because I think that’s where the crux of the majority of bidding comes down. And they found in this case that, no, in a five to four decision, this does violate the Commerce Clause, meaning this is the government exceeding its powers of commerce within Article One, Section Eight, Clause Three, which here I have written down for us, it just says to regulate commerce with

16:07 foreign nations in among the several states and with the Indian tribes. And what they essentially said was, look, this is now regulating the production because of this. And I’ll talk about that more in a second. But because it’s regulating that production, it’s exceeding this power to regulate interstate commerce. And of course, the 10th Amendment was the only thing they draw and they said that the power is not

16:29 delegated to the United States nor prohibited by it to the states, are reserved to the states respectively, or the people. And so in the case this also comes up, the majority opinion was written by Justice William Rd and he said exactly that. He said, look, this is regulating production, not commerce. And so because it is forcing individual companies to change how they

16:53 produce materials, it exceeds congressional power to regulate that. And he said that in his opinion, he actually says that it’s expressly reserved to the States, which is not in the amendment itself. But he says, look, because this production piece isn’t given in the Constitution expressly, it then belongs to the States, which would become a piece of contention later on and pretty powerfully.

17:17 So in all of Homes juniors descent, he brings us up and he says, look, they’re regulating interstate commerce. It says interstate commerce just because it happens to affect the production doesn’t matter. The reality is that they’re only regulating that. They’re selling it back and forth. And so then that’s within the bounds of the federal government’s power, whether we want it to be or not.

17:37 It doesn’t matter because that’s what it says. And then he has this really powerful line that Oliver Winter, home senior, is very good at bringing out. He says, but if there is any manner upon which civilized countries have agreed, it is the evil of premature and excessive child labor, which I think is really tremendous. Of course, this all becomes constitutional law until the Fair Labor and Status Act

18:01 of 1038, which reverses all of this and then brings about actually starting to begin to get rid of child labor in the country. But anyway, that was a lot of me talking, Laura, going back to our central question of sort of, wow, this really shows the complexity of constitutional issues, I guess. Again, just touching on what spoke to you

18:22 about this particular document and also what is it about this mess that’s really interesting to you in moving towards what I think we’ll all agree is a good goal of getting children out of hazardous situations in factories? Yeah absolutely. I think we touched on it in the beginning, but I think what it highlights is that it takes time and that it takes multiple

18:45 administrations and multiple actors to get things done. I think we see that and we know that when we think about civil rights and women’s suffrage and things of that nature. But even in relatively smaller instances like this, I think we see we’re more than 20 years removed between

19:08 the Keating-Owen Act and then the Fair Labor Standard Act, and there’s the Hammers court case in the middle and multiple ones too. That are all kind of changing the societal impressions of what’s happening here. And so I like that it’s just another example that we can draw on of how social change does take time and again in both multiple actors.

19:32 Yeah, and I think touching on again, we talk a lot about constitutional principles here. So here we have federalism is it the role of the state to figure out how to regulate child labor within their own states and communities? Or does the federal government need to step in because there needs to be some kind of national standard or simply that the states aren’t doing enough to protect the welfare of children?

19:52 And then you have opening up a whole another series of cases which does come out, which you alluded to, which is, okay, well now you’re defining children separately. What then does that mean? What rights do parents have versus children? Which again opens up a lot of interesting conversations that society wrestles with and tries to break apart. And then you have this idea of commerce.

20:14 What does it mean when the government can regulate something that then has an impact on something else? There’s numerous court cases that begin to articulate what that means. It’s interesting and it all comes again over something that is we would all agree with all of a window home statement like it is evil to have children in these factories who are struggling.

20:35 And even out of that too, there are questions about income inequality. A lot of these children are working to help support their families. Are you then denying the ability for those children to make a wage to support their family? And the complexity goes on and on. I think that’s statistic about it. And I’m really glad that you chose to look at this piece because I think it looks at a lot of those nuances and complexities in a really interesting way.

20:58 Yeah, absolutely. Thanks for having me on, Kirk. I’ve really enjoyed looking at this document with you and talking about this sort of little known part of our history as a country. Absolutely. And with that, I’ll thank all of you for tuning in as well. Please be sure to like and subscribe, if you like, this content. We’re producing all kinds of videos this summer, including our Scholar Talk series, which is looking at the powers

21:20 of the executive in the Cold War, which is really interesting. We’re also doing new versions from the past videos and then coming into the fall, we’re going to be ramping up with even more videos and more content so like and subscribe so you can find out all about that and check out all of our other things we’ve got going on in all of our social media channels, whether it’s Facebook or Twitter or Instagram. You can find us anywhere next time.

21:40 Laura, thank you again for joining me. Thank you. And we’ll see you all next time.