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Nation's working children.
The States can and should be left with full power to give more but not less than the minimum consistent with national welfare." EMILY NEWELL BLAIR,
Vice Chairman, Democratic National Committee.
(Whereupon, at 11:50 o'clock a. m., the committee adjounrned.)
COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES,
Wednesday, February 27, 1924.
The committee met at 10 o'clock a. m., Hon. George S. Graham (chairman) presiding.
The CHAIRMAN. Gentlemen of the committee, we have not a quorum of the committee here. What is your pleasure? Shall we proceed with the hearings? If there is no objection, we will go on with the meeting.
There being no objection, the committee proceeded to the consideration of the business.
The CHAIRMAN. There are several gentlemen here who wish to get away quickly, and they say that they have short statements to make. I think it might be well to hear them and let them go ahead. The first one is Mr. Fox, a member of the New York bar.
STATEMENT OF AUSTEN G. FOX, ESQ., NEW YORK, N. Y.
Mr. Fox. I will also try not to accept the invitation of the chairman so jovially expressed that a few of us had a sermon to instruct your honorable committee. We do not belong, or at least I do not belong, to the class sometimes called pulpiteers.
The CHAIRMAN. Speaking for myself, Mr. Fox, I will admit I need a little sermonizing once in a while.
Mr. Fox. May it please you, Mr. Chairman and gentlemen of the committee in appearing here this morning, I do so representing the Moderation League of the board of which I have the honor to be chairman.
At its present session, Mr. Chairman and gentlemen of the committee, there have been introduced into Congress 74 proposed amendments to the Constitution, as I read from some record which was given to me; therefore, I beg to suggest a question, and as the question refers entirely to a sense of what you might say is discreet, the chairman, I am satisfied will be content if I state the question without the answer. The question is this: There are 74 amendments pending before the Congress. Among those amendments are at least three, one of which is quite prominently known as associated with the name of one of our Senators from New York-Senator Wadsworth-which go to amend Article V of the Constitution, which relates to the procedure to be followed in the ratification of any amendment. And therefore, the question has arisen in my mind as one not out of place to put, is it or not discreet, since time is not pressing in a matter of this kind, that all such amendments should await the disposal of the one relating to the procedure for ratification of amendments? In other words, should not we await the acceptance or rejection of that amendment before proposing other amendments?
You can see why it is discreet for me to do not more than to put the question.
Next in importance to the responsibility of the men who framed and proposed the original Constitution and sent it out for ratification or rejection by the people of this country, is the responsibility that rests in part, at any rate, upon this committee to-day. In this paritcular instance, Mr. Chairman and gentlemen of the committee, we may talk about amending the Constitution, when we are asked to insert into its body the amendment which is under consideration to-day. But, in substance are we not really undertaking to make a new Constitution? Are we so sure that if we introduce an amendment into the Constitution, that it will be, indeed, the making or the unmaking, in part at any rate-the undoing of the Constitution under which, for so many years our people have lived, prospered, and been happy?
The question before this committee precisely is this: Is the subject matter covered by the child-labor amendment a fit subject for regulation by legislation? That question has been answered in the affirmative by the people of many States. What I mean to say and should have said, is that the question is not, therefore, in the first instance a question of legislation by some legislative body, but the real question is, shall we put that into the Federal Constitution?
Now, this amendment gives the power to Congress to prohibit and under the eighteenth amendment we have seen that a clause that gives the States even concurrent power to enforce an amendment, does not allow the State to do what Congress may forbid. So that we have the precise question, shall we take this power away from the State and lodge it in the Federal Constitution in the hope that the Federal Statutes will be enforced more effectively and more to the satisfaction of the people than several State statutes enforced by the agents appointed by the States to carry them out? Well, are we so perfectly satisfied, gentlemen of the committee, with our experience with the eighteenth amendment, whether we be prohibitionists or antiprohibitionists, and with the methods which seem to be involved with the enforcement through Federal bureaus of Federal statutes that we find ourselves unable to resist the temptation to make a further experiment in that field, to add one more bureau to the Federal Government, which carries with it one more set of Federal agents, imitating even faintly what we have daily been experiencing under the attempted enforcement of the eighteenth amendment?
How many States to-day have statutes on the subject of childlabor restriction or regulation? At any rate, the burden rests upon the proponents of this particular amendment, as I suppose it always must, to prove to this committee that at any rate, if adopted, it will be more effective than the State statutes have been. Not for a moment, however, are we to concede that efficiency of the enforcement is the supreme test of the desirability of an amendment. The only alternative to this suggestion of efficiency is that this subject is one which in its very nature ought to be in the Federal Constitution, or, in other words, ought always to have been there rather than to have been left to the State.
Gentlemen of the committee, Mr. Coolidge, when Vice President, in an address before the American Bar Association on the 10th of August, 1922, made what I have no doubt will be accepted by you all, as it is by me, as most unreservedly a great fundamental truth. He said, "In a Republic the law reflects rather than creates a standard of conduct. To dragoon the body," Mr. Coolidge continues, "when the need is to replenish the soul, will end in revolt." Mr. Coolidge was not talking specifically, as you might suppose, of the subject of prohibition, but he was talking of the general subject to which his words might apply; and do not his words apply to the present subject under discussion?
This is a subject which is somewhat akin, if not within the field upon which we entered when we adopted the eighteenth amendment. I am inclined to quote a few words from an address made quite recently-in January-before the Pennsylvania Educational Association by Dr. Nicholas Murray Butler-we all know of the Columbia University. He was speaking directly upon the subject I have the honor of addressing this committee upon, except he was not discussing the precise subject. He says "it is therefore clear that legislation which springs from and directly reflects the public opinion of the locality and State will be infinitely more effective than any Federal Statute."
Now, "Lawless Law Enforcement" was the title of a recent editorial in a leading newspaper. As our Constitution stands, there is no uniform law that regulates, or prohibits, labor by persons under 18 years of age. But any statute which Congress might pass, should this amendment be adopted, must be uniform. I do not suppose for a moment your honors would propose or introduce (none of you) a statute which should say that in South Carolina people under 18 years of age-I feel more inclined to call them people when they are between 17 and 18-should not work in agricultural labor or engage in any gainful occupation (for this amendment covers all gainful occupations) and the people will say, "If you give Congress the power to govern labor up to 18, they would not go so far as that." But Mr. Chairman, granting power is not the best way to prevent its exercise, and the question is always to be considered when it comes to granting it in the fundamental law: Not what Congress may do or will do, which is a guess, if you will pardon me for using so speculative a word, but what they may do. Let us consider for a few moments a few facts which I have taken from the World Almanac.
In 1920 in Alabama, Arkansas, Georgia, Mississippi, North Carolina, South Carolina, and Virginia the percentage of child workers in agriculture, between the ages of 10 and 15 years, varies from 23 per cent in Mississippi to 5 per cent in Virginia of the whole number of child workers, while in California, Colorado, Connecticut, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, Vermont, Washington, and Wyoming the percentage of child workers engaged in agriculture varies from two-tenths of 1 per cent in Rhode Island to 2 4/10 per cent in Missouri.
Under the head of "Changes in the number of children employed the World Almanac states that from 1910 to 1920 the percentage has
decreased in agriculture, forestry, and animal industry, where it was 58.9, in extraction of minerals 72.6, and in manufacturing and mechanical industries was 71.1.
It is probably true that owing to the disappearance by judicial decisions of the statutes of the Federal child labor law of 1922, and in part to the present period of increasing employment, there has been an increase since 1920 in the number of child workers as of all other classes of workers, so those figures may have been somewhat modified since 1922.
A great majority of our people, as I said, may feel that through some legislative body there should be some regulation or prohibition of child labor up to the age of 18 years. This committee may be unanimous upon that proposition. But the question is not that. The question is, if you feel that way first, how best it may be accomplished, and, second, how safe to the Constitution may we take another step toward changing our form of government.
Do not shut your eyes or try to shut your eyes to the fact that we are threatened in this series of amendments with a change in our form of government. And Congress has before it to-day, seventyfour or five amendments to take away from the States the power to regulate the most intimate relations, and the most ever intimate relation, of course, is that of marriage. The most serious question after the consummation of the marriage is the undoing of the marriage. If you feel that you may safely, to the Constitution, in your effort to do something to provide safely for children, introduce this amendment into the Constitution, what arguments have you left, gentlemen of the committee, when next month you are presented here at this table by men who are urging you to do what I have just said, clothe Congress with the power to say to South Carolina, for instance, you shall grant divorces when we, Congress, say you shall. And don't forget Mr. Coolidge's prophetic words, that that is the sort of thing that leads to revolt. Don't think that I am predicting civil war again, but you are predicating a resistance in one form or another by justly dissatisfied people with the success of what may be only a minority of the people in clothing Congress to do that which the people still feel (and that is not the expression of States rights in the old sense of the word) they ought to be left with the right to continue to regulate for themselves. Perhaps right here it is right to say that Capper and Fairchild's amendments are identical, proposing that Congress shall have power to make laws uniform throughout the United States on marriage and divorce, to the legitimization of children, the care and custody of children affected by annulment of marriage or by divorce. Advocates of uniform marriage amendments are supporting the Capper-Fairchild amendment. But there is another amendment which would prohibit the States from regulating absolutely, but the Capper-Fairchilds amendment is the one which the supposedly feminist lobby is pushing (and I do not use the word feminist in any ugly sense), which would not permit any State to prohibit divorce but would allow any majority of the quorum of Congress to liberalize divorce laws throughout the States and provide for the care and custody of children.
If it be still true, gentlemen of the committee, that we have but one lamp by which our feet are guided, if it be still true that we do
not know of any way of judging of the future but by the past, remember, if you please, what has already happened to the Constitution so recently and do not, I beg you, enter upon any further experiments in the field which, unhappily I believe for this one, already has been occupied by the eighteenth amendment. And in saying that, I am not appealing to the prejudice of anybody who is antiprohibitionist, but I am speaking of the need now to-day to come to the rescue of the Constitution and preserve it as it was intended to be and as it always was until the event which happened to which I have referred; and search your minds, I beg you, judicially on the question of how far that tyrannical procedure, already the subject of a motion or resolution to investigate the Prohibition Bureau by the House, has filled the land. However, the fifth amendment on amending the Constitution was drafted by Madison, introduced by Madison, and seconded by Hamilton, and was accepted by the men of all the States except Virginia and New York. But in accepting it Hamilton wrote of the danger of encumbering the Government with any constitutional provision, the propriety of which is not indisputable. and Hamilton's word "indisputable" only reflected the language of Madison which limited the right of Congress to propose amendment to some occasion when two-thirds of both Houses shall deem it necessary. Strange words! Are there any stranger? I hope I shall not be guilty of accepting your invitation when I suggest that an oath to support the Constitution means that you should not attempt to put anything into it when in your hearts you deem it necessary.
Are we so sure, gentlemen of the committee, that in passing this eighteenth amendment to which I have referred, we have shown ourselves to be wiser than they who sat together in Philadelphia in 1787 and wrote the Constitution based on the fundamental ideas that the control of the widely divergent habits and customs of the people of the different States should be left for the States? Can we go on, gentlemen of the committee, little by little, impairing the power of the States, impairing the power and rights of the people of the States-I am not talking States' rights, you all know that to control their own affairs, to regulate their lives according to the standards and customs that prevail in their own communities? Can we go on, little by little, as we are invited to-day to do and invited. by other amendments to do, and yet be sure that we are not in fact reversing the very definition of our Constitution, "an indissoluble Union of indestructible States?"
Mr. MICHENER. You said you represented the Moderation League? Mr. Fox. Yes, sir.
Mr. MICHENER. Will you state just who the Moderation League is? Mr. Fox. With the utmost pleasure, sir. I will see that each gentleman gets a copy and also a statement of the members of our advisory board so that you can see precisely, if you will pardon the slang expression, what sort of a bunch we are.
Mr. HERSEY. What is the object of it?
Mr. Fox. Well, I have just stated it.
The CHAIRMAN. To protect the Constitution?
Mr. Fox. When we organized we were impressed with the question how far the Volstead Act to-day, in depriving the working man of beer, has driven him, using Mr. Gomper's words, to a whisky diet.