The Child Labor Amendment
One of the most powerful trends in modern constitutional law is the decline of texualism. I am not referring to judicial interpretation, although you can make a good case on that score. I’m talking about the lack of interest in creating new constitutional commands through the Article Five process. Prior to the 1920s, it is fair to say that most people thought that major changes should be put into formal text. The Founding Fathers obviously believed that. Reconstruction Republicans took that view. And so did the Progressives of the 1910s. But since then constitutional amendments have been about specific items (imposing a term limit on the President, giving some voting rights to the District of Columbia, repealing the poll tax in federal elections), while the general and powerful principles (like the right to privacy) are articulated by the courts. What accounts for the growth of this unwritten constitution?
The obvious answer is the New Deal, which created a powerful precedent for transforming the Constitution through judicial appointments and broad statutes. This begs an important question though. Why did that generation break with tradition? My research, which I’m hoping to turn into an article, indicates that the failure of the Child Labor Amendment in the 1920s and 1930s was a watershed event because its opponents figured out how to beat textual changes in the states.
Let me give you the highlights. The Child Labor Amendment was the first one passed by Congress but defeated in the state legislatures in over a century, unless you count the 1861 proposal to make slavery permanent that collapsed once the Civil War began. That was accomplished through a mass media campaign, which drew on popular anger at the effects of Prohibition and fears of socialism, and by extensive lobbying efforts from business groups.
This defeat had at least two major consequences. First, when Congress passed the Twenty-First Amendment in 1933 (to repeal Prohibition) they provided, for the only time in our history, that the amendment be passed by state conventions where special interests would be less able to block the proposal. More important, FDR was strongly influenced by this episode when he reached his conclusion that Court-packing was a preferable strategy to an amendment.
Anyway, it’s an interesting story that I’ll hopefully get to tell soon.