Child Labor and State Constitutionalism

Authors

• Andrew Hammond
• Helen Hershkoff

Publication Date

8-30-2026

Abstract

Almost ninety years after Congress banned “oppressive” child labor as part of the Fair Labor Standards Act, employers are pushing state legislatures to let them put children to work in dangerous poultry plants, at hazardous construction sites, and during late shifts on school nights. Perversely, calls to rollback federal protections are camouflaged in the rhetoric of parents’ rights, casting child labor regulation as intrusive, paternalistic, and even socialist—echoing the same corporate arguments used a century ago when the Child Labor Amendment to the U.S. Constitution went down in defeat. These arguments mask the desperate economic circumstances of a parent claiming a “right” to have their child engage in unsafe working conditions—circumstances created by employers who effectively get government subsidies to hire workers on the cheap and amplified by federal policies that eliminate or cut funding for programs that support families. Although many of the proposed state rollbacks go below federal statutory requirements, presidential politics make federal enforcement proceedings unlikely, and federal courts so far have blocked suits brought by children and their parents to enforce federal law.

No person in the United States should be priced out of the blessings of family. This Essay argues that state constitutions, with their commitments to education, welfare, health, safety, and labor, could provide a bulwark against harmful child labor practices as well as a pathway to greater protections than federal law currently provides. Indeed, state constitutions offer more than just doctrinal tools. In particular, they give voice to democratic aspirations that reframe the narrative of child labor: regulation does not pit government against parents but rather allies government with parents to make family formation and child rearing affordable and accessible. Above all, this Essay underscores a broader theme: that social and economic rights, treated by the Supreme Court as absent from American constitutional law, persist in state constitutions and can shape and motivate a family-by-family campaign for economic justice on behalf of parents and children.

Recommended Citation

Andrew Hammond and Helen Hershkoff, Child Labor and State Constitutionalism, 121 Nw. U. L. Rev. 29 (2026).
https://scholarlycommons.law.northwestern.edu/nulr/vol121/iss1/3