In a time before the New Deal, Hammer v. Dagenhart (1918) said child labor was legal.

Without being too complicated, here’s the facts of Hammer v. Dagenhart. The Child Labor Act prohibited the shipping of goods in interstate commerce made by children. A father and his two kids wanted an injunction because the law was unconstitutional.

The decision was 5 to 4, although not a strong holding. The vote was good enough to make a law. However, if the court’s composition changed, this holding could be overturned.

That being said, here’s the issue in this case: Doe the law violate the Tenth Amendment, Commerce Clause, or Fifth Amendment?

Additionally, here’s the rule: Congressional power does not include the power to regulate the production of goods for commerce; that is, Congress cannot regulate shipping under the commerce clause.

To begin, Justice Day delivered the majority. He said production wasn’t commerce; therefore, it falls within the state’s jurisdiction to regulate it. He said states have this state police power by way of the Tenth Amendment.

However, Justice Holmes had an interesting dissent. He said that the regulating of shipping falls within state police power. The state must regulate their own affairs.

In the end, child labor was overturned by United States v. Darby Lumber Co. This case regulated child labor out of existence, so the New Deal got rid of child labor. However, the Hammer case showed that child labor was legal at one time.