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THE GREEN BAG
CONSTITUTIONAL LAW (Executive Power Over Legislature). James D. Barnett con cludes in the May-June American Law Re view (V. xli, p. 384), his article on " The Executive Control of the Legislature," begun in the preceding number. CONSTITUTIONAL LAW (Federal Labor Legislation). The right of a state to regulate the employment of children is settled, the foundation for the right being found to lie in the conception of the child as a future citizen in whose welfare the state is concerned. "The Beveridge Child Labor Bill and The United States as Parens Patriae," by Andrew A. Bruce, in the June Michigan Law Review (V. v, p. 625), says "the question now re mains as to how far the Federal government may itself assume the position of parens patriis and itself take measures for the protec tion of the children of the nation." The Beveridge bill sought to forbid the transpor tation of the products of child labor over interstate lines. Senator Beveridge took the position in his argument before the Senate that the power of Congress over interstate commerce was supreme. Mr. Bruce considers this position untenable, disagrees with the senator in his view of the result of the " Lot teries Case," and declares the other state ments of the courts relied on by him to be dicta inapplicable to the facts now in ques tion. "There is another theory, however, on which Congress perhaps may act in the matter, and that is the theory that the citizen of a State is also a citizen of the United States; that the United States has the right to protect its own citizens; that it, as well as the State, is parens palrice" This is no doubt a new governmental theory in the United States, or at any rate a theory which has not been judicially promultated. Since the Civil War, however, and the adoption of the Fourteenth Amendment, it has had much in its support. Every person born or naturalized within the United States and subject to the jurisdiction thereof is a citizen of the United States as well as of the State in which he resides. The whole is no greater than the sum of its parts, and the strength of a nation certainly depends upon the strength and intelligence and morality of
its individual citizens. . . . De Tocqueville, in the middle of the last century, asserted that there was practically no national power in America and that an attempt to enforce a compulsory conscription would result in a dissolution of the Union. The Civil War, however, and the almost uniform acquiescence in the practice of drafting soldiers therein pursued, have totally disproved the assertion. The struggle also taught, as no other lesson could have taught, the absolute dependence of the nation upon the virility and morality of its citizenship. No one during that struggle would have doubted the power of Congress to punish those who should cut off their fingers or in other ways render themselves unfit for military service and thus seek to escape the drafts. . . . Can anyone deny that the em ployment of child labor has been a potent fac tor in the physical deterioration of the British people, and is not only now rapidly becoming but has always been a potent factor in the deterioration of the American J "Congress then, it would seem, should act in the matter directly, though perhaps punish indirectly. It should take the broad position that the protection of the health and of the lives and of the morals of its citizens is as much a matter of national concern as the pro tection of the currency or of the flag. ... It should directly prohibit the employment of child labor and establish, as far as possible, a uniform rule in relation thereto — a rule, how ever, which should adapt itself to climatic and other conditions. It should punish violations of this rule in part by denying the right of interstate commerce to those who have vio lated it. Whether we are so far a nation that this may be done, is for the courts to decide. The direct attack is certainly just as constitutional and defensible as the indirect. In fact, the indirect method suggested by Senator Beveridge can alone be justified on this theory of national citizenship and on the assumption that the direct attack could be made. It stretches the Constitution just as far as would the direct attack itself. It is dangerous because it is covert, because if we once establish the precedent and grant to Congress the unlimited right to destroy com merce, not as a punishment for crime, or be cause the thing transported is injurious, but
