From 1903 to 1918, the Supreme Court consistently had approved NATIONAL POLICE POWER regulations enacted under the COMMERCE CLAUSE. But in Hammer v. Dagenhart, the Court deviated from this tradition and invalidated the KEATING-OWEN CHILD LABOR ACT, which prohibited the interstate shipment of goods produced by child labor. The Court's restrictive DOCTRINE nevertheless proved vulnerable and the decision itself eventually was overruled.
In CHAMPION V. AMES (1903) the Justices had sustained a congressional prohibition against the interstate shipment of lottery tickets. The ruling actually was quite narrow, holding that such tickets were proper SUBJECTS OF COMMERCE and that Congress could prevent the "pollution" of INTERSTATE COMMERCE. A more general, expansive doctrine seemed to emerge as the Court soon approved similar regulations of the interstate flow of adulterated foods and impure drugs, prostitutes, prize fight films, and liquor. The Court abruptly deviated from this course in the child labor case, perhaps signaling a reaction against some of the Progressive era's social reforms and the Court's prior tendency toward liberal nationalism.
Justice WILLIAM R. DAY, speaking for a 5?4 majority, maintained at the outset that in each of the other cases the Court had acknowledged that the "use of interstate transportation was necessary to the accomplishment of harmful results." But the child labor regulations, Day held, were different because the goods shipped were of themselves harmless in contrast with lottery tickets, impure foods, prize fight films, and liquor. It was an unsound distinction, but one perhaps anticipated by Justice JOHN MARSHALL HARLAN'S remarks in the Lottery Case that the Court would not allow Congress arbitrarily to exclude every article from interstate commerce.
The Court refuted any suggestions that congressional authority extended to prevent unfair competition among the states, thus enabling it to ignore any discussion of the evils or deleterious effects of child labor. This argument was grounded in the majority's revival of rigid notions of dual federalism. Production, Day said, as he resurrected an older, dubious, and arbitrary distinction, was not commerce; the regulation of production was reserved by the TENTH AMENDMENT to the states. "If it were otherwise," Day noted, "all manufacture intended for interstate shipment would be brought under federal control to the practical exclusion of the...