to enter its domain and legislate there. That would be amending the Constitution by an unconstitutional method. The proposition then is, apart from its relation to other prohibitions of the Constitution, Is this a regulation of commerce?

Now, I have undertaken to point out that in all the cases in which an article has been excluded from commerce it has been excluded because of something inherently bad in itself. Now, here is a bill that applies to every product in this country that is now manufactured, and declares the inherent nature of every such product is to be changed by its contact with a child. Everything in the way of food, everything in the way of manufactured articles of every kind, every product of our factories and other producing establishments is to have its character stamped upon it in interstate commerce, not by what it is in itself but by the fact of whether or not among hundreds of employees one child within a forbidden age is employed in the establishment in which it is produced.

Can Congress by legislative magic change the inherent nature of an article by associating it with the conditions of employment under which it is produced? Can Congress deny transportation to a child whose father was a convict or whose mother was a prostitute, on the ground that it was produced under conditions of immorality? Can it deny interstate transportation to either party or to the children of a marriage either of the parties to which had been previously divorced contrary to a standard established by Congress for the purpose of protecting national morals in the marital relation? Can Congress establish for every State in the Union factory laws, inspection laws, hours of labor laws, minimum wage laws, efficiency methods in production, literacy tests for alien employees, all forms of admittedly local regulation, by denying the facilities of interstate commerce to commodities not produced under its standards?

It is not enough to say that this power of Congress must depend upon so changeable a thing as popular opinion respecting the subject matter of regulation, because it has been said by a great Justice, now dead, Mr. Justice Storey:

The Constitution speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. (19 Howard, 393).

Senator CUMMINS. That is a little in conflict with some of the decisions of the Supreme Court. For instance, take intoxicating liquors. The Supreme Court once said, in regard to the law regulating intoxicating liquors-I believe this was the law of a State that at the time intoxicating liquors were a legitimate subject of commerce, and indicated very clearly that its transportation from one State to another could not be prohibited even by Congress; but it said, as I remember it—I have not read the decisions for a long time -that if there came a time when intoxicating liquors were looked upon generally, universally, as bad by the civilized sense of mankind, and condemned, as the lottery business had been condemned, that, then, intoxicating liquors should be outlawed, and that it could be provided that it would not be transported from one State to another. So public opinion does necessarily change the complexion and meaning of the Constitution of the United States.

Mr. EMERY. That is judicial recognition of public judgment. Senator CUMMINS. Congress has by its word declared the public sense in that way. It has to be an evolution of the people, and it is through their organized judgment, if you please, that the status is determined.

Mr. EMERY. The distinction there is that you are looking squarely into the nature, character and inherent essence of the article which is the subject of judgment.

Senator CUMMINS. I do not suggest that as a parallel case, but only suggest it as being a very obvious conflict with the decisions you have just read from, by the Supreme Court.

Mr. EMERY. I do not think it is in conflict when it is understood that so far as the powers of Congress are concerned they can not be increased or changed in nature by the words of men. In other words, the powers of our Government are not to be changed in their nature by passing expressions of public opinion.

Senator CUMMINS. I understand that, of course.

Mr. EMERY. Yes. Now, it is said here that the States are unable to protect themselves against the evils of child labor or against combinations becoming the users of child labor, and that, therefore, is a reason for the enactment of this legislation, for the evil is one that the Nation alone can reach.

Now, so far as the users of child labor are concerned, they can be reached in each of the States if the different States desire to reach them. But the trouble is that there is not everywhere apparently public opinion to demand such action in the local communities. If there were such public opinion, then, I say, steps would be taken to meet the situation locally. The reason for that must be that local opinion knows its own conditions. It can not be possible that any State of the Union is supporting conditions that are so revolting that they offend the moral sense of the Nation.

But if there is anything that is produced in any State in this Union that is of a character to affect the morals or the health or the welfare of the people of any other State, the people of such State can utterly close their markets to it. They can utterly forbid its retail sale, as they have forbidden the retail sale of intoxicating liquors. There is not a State that can not forbid the retail sale of products of child labor, if that is something within the police power of the State. The reason why it is not attempted must be because the subject is not a valid exercise of the police power of the State. If that is so, then it is not a subject within the commerce power of Congress. There can not be two rules in regard to that. The Supreme Court can not uphold the exercise of the commerce power for the purpose of excluding from interstate commerce a commodity on account of the immortlity which it produces or generates unless the power when exercised by and within a State could be sustained for the same reason. If gentlemen fear to go into a State tribunal and submit this principle to its judgment, then, for the same reason, it can not be sustained as a protection of public morals within the domain of interstate commerce.

Now, gentlemen, thanks to your courtesy, I have reached the conclusion of what I have to say. I now desire to sum up briefly what I have endeavored to present to the committee, and that is: First, that the objection urged to this measure is an objection directed to

the policy upon which the Nation is asked to embark by the proponents of this bill. We believe it is one that seriously menaces the integrity, the organic structure, of this Nation by authorizing an intrusion by Congress upon the reserved powers of the State, that deprives the individuals living in those States of the right of selfgovernment in determining the domestic conditions under which they shall live and move and have their being one of the most essential principles of American Government for which our fathers from time immemorial have contended.

In the second place, the form of the bill is bad. It is poorly drawn. It is ambiguous. It is far wider in its terms than in the declared purposes for which it is proposed. The rule of evidence which it offers is a rule capable of and likely to tempt arbitrary use. It protects nobody, not even dealers possessed of the guaranty offered in this bill, from arrest or prosecution, but only from conviction when they have shown by affirmative defense that they have not employed children under the conditions prohibited.

The measure is invalid because, under the guise of regulating commerce, it is intended to and does regulate conditions of manufacture in every State of the Union, and manufacture and commerce are in their nature two essentially distinct and separate things ruled by separate jurisdictions. It was the manifest intention of the framers of the Constitution and of the people of the United States to confer upon Congress the power to regulate intercourse between the States, not the power to regulate production in each State of the American Union. We further contend that the mere intention to ship a commodity in interstate commerce, or engaging in interstate commerce or production for that commerce, does not bring the production or the person so engaged within the commerce power. For the commerce power lays its hand upon the article so produced only when it had been offered to an interstate carrier in the State of its origin for shipment to the State of its destination. Commerce begins where manufacture ends. By its nature it can not have being until the operations of production have been concluded.

We contend that exclusion from commerce has never been applied nor contemplated by the Congress of the United States nor sustained by the courts, with respect to any article that was not bad in itself, nor to any acts of individuals that did not threaten the safety or the freedom of that commerce. We acknowledge that in protecting it Congress may remove any obstruction to its flow, moral, physical, or economic; a mob, a monopoly, or a sand bank. We hold that any rule prescribed for the government of intercourse between the States must sustain a real and substantial relation to the commerce which it undertakes to regulate; and that this proposal is characterized by no real and substantial relation of that kind. The rules of construction consistently applied by the courts of our country will determine whether or not a proposal to regulate commerce is such, not from its declared purpose, but by the language in which it is expressed, its legal effect, and its practical operation in the everyday affairs of the commercial world which it is to govern. This bill, measured by that standard, is not a valid regulation of commerce, but a prohibited regulation of production.

Let it be assumed, as is here declared, that the improper employment of child labor, is an evil that Congress should exert whatever powers it possesses for the purpose of preventing. I agree that it is the duty of the National Government to undertake to protect the child within its jurisdiction against exploitation in industry; but it remains ridiculous to say that because a purpose is laudable you are to usurp power to embark upon it, and imperil the true relations between the States and the Nation. To hold that is to assert that any laudable purpose justifies the obliteration of constitutional restraint for the purpose of accomplishing a result desirable in itself, irrespective of the invalid means which may be employed for that end.

Finally, Mr. Chairman, this proposal is so revolutionary in its terms, both as a principle of law and as a policy of regulation that it not only is capable of leading, but it unquestionably will lead, to the presentation of proposals equally justified, which will, by their necessary operation, deprive the States of their essential police powers and reduce them to a condition of legislative impotence. For, if Congress can say that no commodity shall move in interstate commerce because it objects to the character of the employment relations existing between the manufacturer who produced it and one child in his entire establishment, then it can say with equal right and it will be asked to say that no commodity shall be produced for shipment in interstate commerce that is the product in whole or in part of adult labor, man or woman, employed more than eight hours in any calendar day or more than 48 hours in any one week, because the necessities of the Nation for adequate defense require that every man and woman shall conserve their powers and thus insure the life, health, and strength, not only of possible military defenders, but of the parents of the Americans of the future. More than that, whenever, in the opinion of a number of nonresidents, any State fails to protect the morals or health of welfare of its people Congress will be asked to prevent the interstate shipment of commodities produced under the objectionable conditions existing in that State. Such a policy, gentlemen, will turn over the regulation of the internal affairs of all the States with respect to morals and health and welfare, and not to the judgment of local men who live in the community and understand its domestic life and conditions, but to a majority in Congress who, by the very nature of things, can not and will not know or learn the peculiar physical and economic conditions that constitute the individual characteristics of each State.

It seems to me that a proposal of such overwhelming legal and social importance, especially in view of the fact that it has once been disapproved by the Judiciary Committee of the House, that it has been debated in the Senate and disapproved by the ablest lawyers of that day-is deserving of the attention of the great Judicial Committee of the Senate. So, with all deference, I venture to suggest that in view of the nature and importance of the bill, and without any reflection whatever upon the distinguished lawyers who sit around this table, it should have the judgment of the formal law body of the Senate, that authoritative committee upon whose legal judgment the Senate acts, before you ultimately determine the legal quality of this proposal.

I thank you.

Mr. McKELWAY. I would like to insert a brief by Prof. Parkinson discussing the bill itself, including the prima facie proof section. The CHAIRMAN. Very well.

(The brief referred to is as follows:)

SUMMARY OF PROVISIONS OF KEATING-OWEN BILL TO EXCLUDE FROM INTERSTATE COMMERCE PRODUCTS OF CHILD LABOR.

By THOMAS I. PARKINSON.

STANDARDS OF FEDERAL CHILD LABOR LEGISLATION.

Following the decision of the child-labor committee that Federal legislation to suppress child labor in the mining and manufacturing establishments of this country was desirable, the committee was confronted with the necessity of determining the exact nature of the standards which should be written into such legislation. The first essential of such legislation was the determination of the ages under which and the hours within or during which children should not be employed. Thereafter it had to be determined precisely what establishments or places of industry or employment the standards should affect. These standards were fixed by the committee as follows:

(1) Children under 16 not to be employed in mines or quarries. *

(2) Children under 14 not to be employed in mills, canneries, workshops, factories, or manufacturing establishments.

(3) Children between the ages of 14 and 16 not to be employed in mills, canneries, workshops, factories, or manufacturing establishments more than eight hours a day, or more than six days a week, or before 7 a. m. or after 7 p. m.

These standards are in accord with, and in many cases lower than, the standards established in States where effective child-labor legislation is in force.

GENERAL PURPOSE OF FEDERAL CHILD-LABOR LEGISLATION.

This legislation seeks to discourage the employment of children under the ages prescribed or within the prescribed hours in the mining and manufacturing establishments of the country. On the assumption that Congress can not directly prohibit such employment the proposed bill seeks to accomplish this purpose indirectly. Indirection in the accomplishment of its purpose is not unusual in Federal legislation. Examination of recent bills pendng before or enacted by Congress suggest three possible methods by which the purpose of this and similar legislation may be accomplished by congressional action:

(1) Taxation of etablishments using child labor at a rate making the use of such labor not only not profitable but possibly costly to its employers. This is the method adopted by Congress in the Esch match bill, levying a prohibitive tax on matches manufactured from poisonous phosphorus. It is also the method more recently used by Congress to tax out of existence undesirable future contracts for the sale of cotton. Perhaps the most important exercise of the taxing power for such a purpose is represented by the oleomargarine-tax law.

(2) The prohibition of the use of the United States mails by employers of children under the specified ages or within the prescribed hours. This method of accomplishing such a purpose as that aimed at in the proposed legislation has never been incorporated in an Act of Congress. Such a provision was contained in the original cotton-futures bill as it passed the Senate, but in the act finally adopted this principle was abandoned in favor of the taxing power. (3) The prohibition of the use of the channels of interstate commerce as a means of distributing the products of the labor of children under the ages or between the hours specified.

In choosing between these available methods it must be remembered that each is indirect and that the test of desirability of either method is, on the one hand, its constitutionality, and on the other hand, its enforceability. To a lesser degree there must also be considered indefinite objections to one or the other methods which would affect the possibilities of securing its enactment. The committee has endeavored, and it believes successfully, to select that method which from all points of view gives greatest reason to hope that it