Child labor and the Constitution 1923

Front matter

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Introduction

HERE is a dispassionate yet sympathetic discussion of the child-labor question. It is the most intelligent and constructive that I have heard or read. And it is most timely, in view of the proposed constitutional amendment relating to child labor which will undoubtedly come up for consideration this winter.

Mr. Fuller’s first contribution is in his definition of child labor and its distinction from child work; for he defines the former not in that which the child actually suffers physically from early labor, but in that of which he is deprived; and he defines child work as a major aim and method in child education. In these two definitions are to be found the law and gospel of this sound treatise.

Child labor in terms of deprivation is the labor of children that deprives them of a fair start in life (the “‘square deal” of which President Roosevelt used to speak) in terms of health, play, recreation, that deprives them of their rightful opportunities of living the life of childhood fully and happily in the only time of childhood and that deprives them also of proper preparation for adult life by putting adult burdens too early upon their shoulders.

But as to work, it is through wholesome, purposeful occupation and not merely through preventive measures that child-labor reform is to be achieved. I often recall the song which we sang in school when I was a child, every stanza of which urged us to work and ended with the threatening refrain that the night would come when we could work no more. But my memory of it is an agreeable one. We sang with zest of working not only ’mid ‘‘springing flowers” and while the ‘“‘dew was sparkling” but even through the ‘‘sunny noon.” It was a happy song not of child labor but of child

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Vill Introduction work,—work that was not a deprivation but a means of happier living and higher hoping.

Prohibitive legislation is necessary, Federal as well as State; but the ultimate goal of child-labor reform can be reached only through positive and personal methods and means. The child must be kept out of harmful and depriving labor by the more inviting and compelling appeals of the school and the home. For child labor in the last analysis, is, as Mr. Fuller has so wisely insisted, a matter of individual cases. It is for this prime reason that I have urged Federal supplement of State provision to make better schools and keep the children in them. This will be the best sort of protection of the child against injurious labor. But as in the Ten Commandments the prohibitive ones come first, so it is necessary to prohibit against child labor until the positive influences can come into full and general sway, to keep the child in enjoyment of its rightful childhood heritage and in preparation for its more useful and noble manhood and womanhood.

Joun H. FINiey. |

AUTHOR’S PREFACE

In 1922 several events helped to renew the challenge of child labor to the American public. Among these was the decision of the United States Supreme Court declaring unconstitutional the Federal child-labor tax law. Then came the initiation of a campaign looking toward the submission to the states of an amendment to the Constitution granting to Congress the power, concurrent with that of the states, to limit or prohibit the labor of children. At about the same time the Bureau of the Census published occupational statistics as of January 1, 1920, showing more than a million children ten to fifteen years of age gainfully employed in this country. In these happenings there is, perhaps, sufficient justification for the writing of this book, but a better reason lies in the need of a new understanding of child labor itself, and of problems on which the court decision of last year has only an incidental effect.

Child labor is not what it used to be, or rather it is not primarily what the term formerly signified. It is no longer a matter of cruel slavery of little children In mines and factories. But even to-day that is the picture that comes immediately to the mind of many a good citizen when we talk about child labor, and to him there is no child labor unless we can describe similar conditions. We can, but that is relatively a small part of it. Nine out of ten persons still think of child labor in terms of bygone conditions or of conditions that represent only a fraction of its total amount to-day. Nine out of ten think of it in terms of the spectacular—horrible conditions calling for drastic methods of reform. Such thought of it does not fit the present situation. The worst evils of forty, twenty, even ten years ago have been removed or vastly abated, and the method of prohibitory legislation has played an effective part in this accomplishment. Abuse of children through abuse of their x Author’s Preface labor power continues to exist, and atrociously bad conditions may be found in certain occupations, particularly in certain industrialized forms of agriculture, but the bulk of child labor in this country does not correspond with the old conceptions and its elimination is not likely to be achieved by dependence on the traditional methods of child-labor reform.

This is apparent when we think of child labor as any work of children which interferes with health and normal development (mental as well as physical health and development), which prevents or balks the legitimate expression of the child’s natural instincts and desires, which deprives him of proper opportunity for play and for schooling, and of education not only through formal schooling and wholesome play but through suitable work. The number of children affected by child labor, thus understood, may be even greater than the census figures indicate, while it is quite possible that some of the children included in the census figures are not working under adverse conditions. Census figures are not based on the modern conception of child labor, and neither are prohibitory child-labor laws. This conception implies differences in child labor according to individual cases, but prohibitory laws do not make very much allowance for the differences in children and in occupations which determine the rightness or wrongness of going to work, or being at work, in a given instance. They measure inadequately, if at all, the things that really enter into this question; they deal with children en masse, and seem to assume that there is something wrong in working, and especially in working for pay. But neither chronological age, nor work, nor wages, is what makes child labor.

So strong is the hold of the traditional idea of child labor “that sometimes such a definition as suggested above is completely misunderstood. Child labor is admitted to have the effects mentioned—interference with health, play, schooling. But the point is that child labor 7s child labor because of its interference in one way or another, and to a greater or less extent, with any one of these rights of children. Conceivably there may be no unfortunate health effects at

Author’s Preface Xl all, only an interference with schooling, for instance. Conceivably, also, there may be no effects, but only hazards.

It is proposed that the employment of all children under sixteen years of age in any gainful occupation be forbidden by law. Public opinion may come to that, but the proposition stands on a somewhat different footing from the prohibition of the labor of children under fourteen in certain industrial occupations and of older children in occupations especially dangerous to health or morals. Most of our gainfully employed boys and girls, as the census reckons them, are engaged in agriculture; most of these are on the home farm; and most of the children in non-agricultural occupations are fourteen or older. Though protection should not be withheld from these American boys and girls, it is a debatable question if their wholesale exclusion from gainful occupations is desirable or necessary. The question is, What kind of protection? Wholesale exclusion, or a kind of protection that will deal adequately with individual cases? - The point of view taken in this book is that, while there is still a place in child-labor reform for the compulsions and prohibitions of school-attendance and child-labor laws, the biggest part of the task of protecting children from premature school-leaving and improper labor lies in the direction of better schools with stronger holding power of their own, a varied curriculum and a flexible grading system, educational and vocational guidance, vocational placement, and employment supervision. All of this implies thorough study and knowledge of the individual child, psychological as well as physical and physiological; the guidance, placement and supervision must be a health and educational enterprise not only in a protective way, but in a positive and constructive way.

In this volume there will be frequent reference to the substitutes for child labor, such as suitable play, suitable schooling, suitable work. But it ought to be remembered that the establishment of these substitutes in the lives of children is, in large measure, a matter of restoration. The Industrial ~ Revolution did not create a new thing called child labor, but it did result in conditions depriving children of oppor-

Xl Author’s Preface tunity for work in suitable places and under suitable auspices, and in particular depriving work of much of its educational value. This is not a complete statement of the changes brought about by the Industrial Revolution and the growth of cities, but may serve to remind us that what we are doing in child-labor reform is largely to give back, under new conditions, opportunities which have been taken away from children.

The whole spirit and purpose of child-labor reform is service to children—and through this, service to society. Service is its keynote. It is a service which does not depend primarily on the fact that the child served is a child laborer. There is no child laborer merely as such. There is, instead, a child, deserving of love and service as a child, with ministration to his ordinary childhood needs, whatever they may be. What a child laborer needs is what a child needs, con--. sidered as a child. He needs health, play, schooling, and / suitable work, just as every child does. Back of the child‘ laborer is the child, the whole child, who is or should be our chief concern in child-labor reform. We should take as our / standard of service in child-labor reform what society should do for all children, and not confine our attention to what child labor does to some children.

As a health movement, child-labor reform is a move for mental as well as physical health, a movement for play and children’s work as against child labor, a movement for health service to children at school and at work, a movement for laying the foundations of lifelong health by safeguarding and promoting the health and strength and power of resist- | ance of boys and girls. The health effects of child labor are | not more significant than the conditions that make for/ health in a positive way. Malnutrition is common among child laborers, but it is impossible to say in how many instances and to what extent in those instances it is due to the work or the working environment; in fact, it is unneces-, sary to know. The puny, under-nourished child in the factory or elsewhere is not getting what he needs. ‘‘Malnutrition,” says H. 8. Jennings, ‘“‘is to be combated in the same way as the bacterial blights——by all the measures

Author’s Preface Xlil required for bringing about free and full development of all the capabilities; that is, by relief from strain; by happy play; by activity in the open, and the like.”

Social work in this country has passed through three stages of outlook and emphasis: in the first, remedial effort was prominent; in the second, prevention; finally came the dominance of the constructive point of view. It still has tasks answering to each description. So has child-labor reform. Prevention is still an important part of its necessary program. But more and more the emphasis is being placed on construction—the providing for all children of the things that child laborers, as children, ought to have in their neverreturning days of childhood and preparation; and the providing of special health and educational services for the children who do leave school and go to work.

The author is grateful to the United States Children’s Bureau and the National Child Labor Committee for many courtesies in connection with the writing of this book. Extensive use has been made of reports on child labor by each of these organizations. The author is also indebted to the Review of Reviews, Good Housekeeping, the Weekly Review, the Survey and the American Child for permission to incorporate in the present volume portions of articles which he has contributed to these periodicals; and to the Secretary of the National Conference of Social Work for permission to make similar use of papers read before sections of that body at Milwaukee in 1921 and Providence in 1922.

RayMOND G. FULLER.

HELEN 8. TROUNSTINE FOUNDATION Cincinnati, Ohio July 1, 1923

Contents

CHAPTER PAGE I, THE CHILDREN OF AMERICA . : " A 1

Census Statistics on Child agar cunder: ameration of Working Children—Comparison of 1910 and 1920 Figures—Occupational and Geographical Distribution— Increase in Child Labor Since 1920—Gains and Losses by Legislation—Importance of Truthful Publicity— Fragments of History—Varied Interpretations of Child Labor—Scope of the Reform Program—Spirit of Child-Labor Reform—Co-operation of Social Institutions—Limits of Legislation—Children Serve Who only Wait—Brief Bibliography

II. RurRAL CHILD LABOR . i 32

Appendix

History of Federal Legislation Thomas ee the Supreme Court—Questions Before American People— Progress in State Legislation—Deficiencies of State Legislation—Form of Constitutional Amendment—The Constitution and Democracy—Some Aspects of the Amendment Problem—‘ Hands Off the Constitution’ ’— Difficulties of Amendment—The Issue of Majority Rule —The Doctrine of State Rights—State Rights and National Necessity—Lessons from the War—Peace-Time Patriotism—The Paramountey of the Child—Brief Bibliography.

The International Labor Organization—Child-Labor Conventions and Laws—America’s Non-Participation— Brief Bibliography.

BIBLIOGRAPHY z ¢ . .

GRAPHS

Proportion of Children between 14 and 16 years of age, ete.

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Proportion of Children 10 to 15 years, ete . . Opposite page Child Labor and Illiteracy . . Opposite page Comparisons of State and Federal Child Labor Standards

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297 311 313

4 8 126

CHILD LABOR AND THE CONSTITUTION

Chapter I The Children Of America

Nations, in the simple, deeply significant words of Charles Kingsley, are gathered out of nurseries. They are gathered out of the schools and the factories where children are; out of the places where children play, and out of the places in city or country of playless toil. America’s children are the makers of America; and they are what America makes them, for good or for ill, as they grow up under beneficent conditions or under the conditions that constitute child labor. We must ask ourselves, What does child labor mean to the welfare of America? We must ask ourselves, too, What is the duty of America as an organized national community to the children who, as workers before their time, are denied the privileges and opportunities that properly go with childhood?

The present campaign to secure a child-labor amendment to the federal constitution progresses with the aid, and at the same time under the handicap, of numerous confusions and misconceptions in the minds of the American people. Those who believe that the adoption of such an amendment, and the passage of a child-labor law by virtue of authority conferred upon Congress by such an amendment, are the sine quad non and final all of child-labor reform, are greatly mistaken. Those who believe that such an amendment and such a law will be of little value, or even of dubious propriety, are, in the opinion of this writer, also mistaken. They are mistaken who believe that child labor is practically over, and so are they who believe that child labor, in the old, traditional and stereotyped sense, is still prevalent.

The paradoxical statement may be made, if it be a paradox, that the amount of child labor in this country has been much diminished in the last twenty years, the last ten, possibly the last five, but that the task of abolition is now a bigger and more difficult task than it ever was before, and embraces a larger number of children. We have reached a new stage in child-labor reform, a stage which permits and demands a broader view of child labor itself and the application of a new and broader program for achieving its disappearance. Not that the elements of this new program are entirely new; but both the outlook and the program of child-labor reform must be fundamentally and extensively re-formed.

CENSUS STATISTICS AND CHILD LABOR

Statistically—that is, according to the federal census of occupations—child labor in the United States reached its high point in 1910. In 1880 there were 1,118,356 children from ten to fifteen years of age (16.8 per cent of all in that age group) engaged in the gainful occupations. In 1900 there were 1,750,178, or 18.2 per cent of the same age group. In 1910 there were 1,990,225, or 18.4 per cent. On the face of the census returns for 1920, child labor in America was cut almost in half in the decennial period beginning with 1910. The recently published figures for the number of children ten to fifteen years old engaged in gainful occupations indicate improvement, but valid conclusions can be drawn from these figures only after careful consideration of some important facts in addition to the figures.

Census statistics and the nature of child labor stand rather far apart. Child labor is the work that interferes

The Children of America ane with a full living of the life of childhood and with the best possible preparation for adulthood. It is a matter not only of effects, but of hazards; and not only of effects and hazards, but of deprivations among which are the lack of suitable and sufficient schooling, the lack of suitable and sufficient play, and the lack of that kind and amount of work which is children’s work as distinguished from child labor. Obviously, the condition of child labor depends to a large extent on the individual case—the particular boy or girl on the one hand, the particular work on the other. And quite as obviously, it is not to be determined precisely by such easily applied criterions as chronological age or the census definition of ‘‘gainful employment.’’

Nevertheless, it is probably true that the majority of children under sixteen listed by the census as ‘‘gainfully employed’’ are subjected to hazards or deprivations that constitute child labor. It is also true that in a broad sense of the term there is much child labor not covered by the census figures. Neither ages nor wages are proper eriterions of child labor. The economic value of a working child—his present, immediate earning power, small though it is—is what gets him into the census classification of gainful employment. His future value, either as earner or as citizen, is not considered. It is well to emphasize that the earning of wages does not of itself make a child a child laborer—other factors are the factors that count. There may be child labor without any wages at all, and wages without child labor.

In the census data ‘‘children spending more than half their time at school’’ are not classified as gainfully employed. It happens that thousands of children whose work outside school interferes seriously with their school attendance and school progress are excluded from the census returns. Many of these children, with their school work and outside work, have a working day of ten or twelve or fourteen hours. In agriculture children on the home farm are reckoned as gainfully employed only if their work constitutes a material addition to the labor income, but for

A The Children of America an adequate picture of the extent to which farm work interferes with schooling we should have to look elsewhere than to the occupational census. In rural regions generally the farm work of children is one of the chief causes of the shorter school term, the more irregular attendance, and the greater retardation of pupils compared with urban communities.

UNDER-ENUMERATION OF WORKING CHILDREN

Children under ten are not included in the occupational returns. Hundreds of boys and girls below that age are suffering irreparable injury in one way or another from tenement homework, domestic service, and labor in the cotton and sugar-beet fields. The census-takers learn of few children engaged in tenement homework. The number of children in tenement homework nobody knows, because there is no way of finding out; but it is very large. Information given by parents to the census-takers leaves the number of children engaged in other occupations also underestimated—street trades, for example.

The seasonality of certain occupations affects the census returns. The census of 1920 was taken in January, when agricultural operations are practically at a standstill, the same being true also of canneries. The census of 1910 was taken in April, when there is much more activity in these occupations. But neither month gives adequate returns for seasonal work. A host of children who work in the beet fields, the onion fields, the melon fields, the cotton fields, the tobacco fields, the berry patches, the truck gardens, the fruit and vegetable canneries, do not appear in the census returns.

In an article in The Survey,’ Miss Ellen N. Mathews of the Federal Children’s Bureau discusses the figures for agriculture as follows:

The belief that part of the decrease in agricultural workers may be explained by an over-enumeration in the 1910 census is supported by the fact that in 1910 an increase over 1900 of

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34.8 per cent in the number of children engaged in agricultural pursuits was reported, although no similar increase in the total number of agricultural workers occurred, and a marked decrease took place in the number of children engaged in non-agricultural pursuits. In 1910, much more emphasis was placed than in 1900 and in 1920 upon the instruction that enumerators return an occupation for every child gainfully employed. It is, therefore, believed possible by census officials that the apparent increase in children engaged in farm work in the decade 1900-10 is due mainly to the enumeration as gainful workers in 1910 of farm children who merely did chores or performed other light tasks not considered gainful occupations in 1900 or 1920. However, at each of the last three censuses, including that of 1910, enumerators were specifically instructed not to return as gainfully employed children working for their parents at chores, errands or household work. Furthermore, inquiries regarding child labor made by the Children’s Bureau covering the agricultural seasons of 1920 and 1921 point to the possibility that the difference in the proportion of farm workers among children reported in the last three censuses, in so far as it is attributable to a change in instructions, is due not so much to an over-enumeration in 1910, as to an under-enumeration in 1900 and 1920. The Children’s Bureau findings in the farming areas studied, which covered parts of New Jersey, Maryland, Virginia, Michigan, Colorado and Texas, would indicate that the proportion of children employed as farm laborers for the whole or part of the farm season is considerably greater than the proportion reported even by the 1910 census.

By far the greater part (84.5 per cent) of the decline in the number of children reported at work in all occupations is due to the large decrease (54.8 per cent) in the number reported as engaged in agricultural pursuits, so that the actual decrease both in agricultural child labor and in all occupations together was somewhat less than the apparent decrease. In the non-agricultural pursuits, the figures doubtless represent more accurately the real decrease in the number of employed children, due in part to the enactment and strengthening of legal regulations, both state and federal. Standards of enforcement were raised in the ten-year period, and greater provision made for administration. There was development of schooling facilities and strengthening of school-attendance laws and of machinery for their enforcement; courses of study were made more practical and more attractive, and in this way large numbers of children and their parents came to look upon schooling as preferable to employment during the years of childhood and adolescence. Sentiment grew against child labor, as did public appreciation of those positive needs and rights of children that are denied in child labor.

COMPARISON OF 1910 AND 1920 FIGURES

Despite the various limitations of census figures as a measure of the amount of child labor in this country, they are not without significance from the child-labor standpoint. It is worth while to compare the figures for 1920 with those for 1910. In 1910 the number of children ten to fifteen years old engaged in gainful occupations was, according to the census, 1,990,225. In 1920 the number was 1,060,858. The percentage of decrease was 46.7. In the same period the total population of these ages increased 15.5 per cent. The proportion of working children in this age group was 18.4 per cent in 1910 and 8.5 per cent in 1920. The number of working boys in 1910 was 1,353,139; of working girls, 637,086. The corresponding figures for 1920 are 714,248 and 346,610.

Most of the statistical decrease of working children from 1910 to 1920 was found in agriculture, animal husbandry and kindred occupations. In these occupations 1,432,580 boys and girls ten to fifteen years old were engaged in 1910; 647,309 in 1920. Largely, this decrease was due to the fact that the census of 1920 was taken in January instead of April. Child-labor laws, by the way, do not apply appreciably to the agricultural group of occupations. Agriculture is usually omitted from the language of the statutes or specifically exempted; or its inclusion under the general head of ‘‘all gainful occupations’’ is ignored. Only a few minor provisions in the statutes affect agricultural child labor and these are not enforced. In 1910 the juvenile farm workers constituted 72 per cent of the total number of working children; in 1920, 61 per cent. In 1910, more than a quarter of a million of them, or 259,818, were ‘‘ working out’’ (i.e., not on the home farm) ; in 1920, 63,990.

Decreases in other groups of occupations must be noted. In 1910 the number of children ten to fifteen in manufacturing and mechanical industries was 281,947; in 1920 it was 185,337. Mining and quarrying industries, a decrease from 18,695 to 7,191. All other occupations (including stores, street trades, transportation, domestic service, etc.) a decrease from 255,003 to 221,021. The decrease in all pursuits outside of the agricultural group of occupations is from 557,645 in 1910 to 413,549 in 1920. Of special interest are the figures for children under fourteen. In 1910 the working children ten to thirteen years of age, inclusive, numbered 895,976. In 1920 the number was 378,063. Of these last 328,958 were in agriculture, and 49,015 in non-agricultural occupations. The number in non-agricultural occupations in 1910 was 95,839.

OCCUPATIONAL AND GEOGRAPHICAL DISTRIBUTION

In 1920, as at previous census periods, the largest number of children engaged in manufacturing pursuits were employed in the textile industries, almost half of them being in the cotton mills. For the textile industries the number of child workers was 77,967 in 1910 and 54,649 in 1920, representing a decrease of 29.9 per cent as compared with an increase of 75.9 per cent in the total number of textile workers. In the cotton mills the number of children employed was 21,875 in 1920 as compared with 40,572 in 1910; this represents a decrease of 46.1 per cent in the number of working children as compared with an increase of 101.9 per cent in the total number of cotton-mill operatives. Although figures are not yet available to show the numbers of minors employed in the textile industries by states, the fact that little if any decrease in the proportion of children in manufacturing occupations as a whole is reported for the principal cotton-textile states of the North indicates that the decreases in child labor in the cotton industry were principally in the Southern states, where considerable advance was made in child-labor and education laws and where the effect of the Federal laws was especially marked. The tardy progress in child-labor reform in the Southern manufacturing and mining industries is simply explained. First, the belatedness of industrial activity and development in that section of the country. Industrial development in the North long preceded, with an accompaniment of a large amount of child labor, which finally brought about legal regulations and restrictions relatively much higher than those now obtaining in most of the Southern States.