This selection appeared as a signed article in the New Republic for July 26, 1922.
THE RECENT decision of the Supreme Court, invalidating the Federal Child Labor Tax Law, raises two wholly different questions, each of very serious public importance. The first involves judgment upon the Supreme Court's action, and to that extent is part of a process of continuing critique of the functioning of the Supreme Court in our national life. A totally different, and immediately practical, issue is presented by the consequences of the Supreme Court's decision; in other words, what are we going to do about child labor?
Is it just to claim, as its critics do claim, that the Supreme Court's decision is "unjust and inhumane"? So to maintain is to imply that the Supreme Court either approves of, or, at least, is indifferent to the horrors of child labor. Such an accusation is absurd. Four of the Justices have heretofore expressed themselves in no uncertain terms about the evils of stunted childhood, and in the present case the Chief Justice, speaking for the Court, characterized the Federal Child Labor Tax Law as "legislation designed to promote the highest good." It is appropriate also not to forget the services which the Chief Justice, while President, rendered in behalf of child welfare. To call the decision "unjust" implies that the Supreme Court, within the bounds of its duty, should have sustained the federal measure. But such a conclusion cannot be reached out of hand. "Humanity" is not the test of constitutionality. Recognition that a law enacted by Congress seeks to redress monstrous wrongs and to promote the highest good does not dispose of the Supreme Court's duty when the validity