What period of American history is associated with an expanded role for the government regulation of manufacturing activity?

The Commerce Clause refers to Article 1, Section 8, Clause 3 of the U.S. Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states. The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States.

The Constitution does not explicitly define the word “commerce” leading to wide debate as to what powers section 8, Clause 3 grants congress. Some argue that it refers simply to trade or exchange, while others claim that the framers of the Constitution intended to describe more broadly commercial and social intercourse between citizens of different states. 

Courts have generally taken a broad interpretation of the commerce clause for much of United States history. In 1824’s Gibbons v. Ogden, the Supreme Court held that intrastate activity could be regulated under the Commerce Clause, provided that the activity is part of a larger interstate commercial scheme. In 1905’s Swift and Company v. United States, the Supreme Court held that Congress had the authority to regulate local commerce, as long as that activity could become part of a continuous “current” of commerce that involved the interstate movement of goods and services.

For a brief period between 1905 and 1937, the Supreme Court narrowed their interpretation of the Commerce Clause in what has now become known as the Lochner era. Courts during this era experimented with the idea that the Commerce Clause does not empower congress to pass laws which impede an individual’s right to enter a business contract.

However, beginning with NLRB v. Jones & Laughlin Steel Corp in 1937, the Court began to recognize broader grounds upon which the Commerce Clause could be used to regulate state activity. Most importantly, the Supreme Court held that activity was commerce if it had a “substantial economic effect” on interstate commerce or if the “cumulative effect” of one act could have an effect on such commerce. Decisions such as NLRB v. Jones, United States v. Darby, and Wickard v. Filburn demonstrated the Court's newfound willingness to give an unequivocally broad interpretation of the Commerce Clause. From the NLRB decision in 1937 until 1995, the Supreme Court did not invalidate a single law on the basis of overstepping the Commerce Clause’s grant of power.

In United States v. Lopez (1995) the Supreme Court attempted to curtail Congress's broad legislative mandate under the Commerce Clause by returning to a more conservative interpretation of the clause. In Lopez, the defendant was charged with carrying a handgun to school in violation of the federal Gun Free School Zones Act of 1990. The defendant argued that the federal government had no authority to regulate firearms in local schools, while the government claimed that this fell under the Commerce Clause on grounds that possession of a firearm in a school zone would lead to violent crime, thereby affecting general economic conditions. The Supreme Court rejected the government's argument, holding that Congress only has the power to regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce. The Court declined to further expand the Commerce Clause, writing that “[t]o do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.”

Nonetheless, Lopez did not indicate a full return to the Lochner era conception of the Commerce Clause. For example, in Gonzales v. Raich, the Court returned to its more liberal construction of the Commerce Clause in relation to intrastate production when it upheld federal regulation of intrastate marijuana production.

In 2012, the Supreme Court again addressed the Commerce Clause in NFIB v. Sebelius. In Sebelius, the Court addressed the individual mandate in the Affordable Care Act (ACA), which required uninsured individuals to secure health insurance or pay a monetary penalty in an attempt to stabilize the health insurance market. Focusing on Lopez's requirement that Congress regulate only commercial activity, the Court held that the individual mandate could not be enacted under the Commerce Clause. The Court stated that requiring the purchase of health insurance under the ACA was not the regulation of commercial activity so much as inactivity and was, accordingly, impermissible under the Commerce Clause. Nonetheless, the individual mandate was allowed to stand because it could reasonably be characterized as a tax. 

While most discussion surrounding the Commerce Clause revolves around the federal government, it indirectly also affects state governments through what’s known as the Dormant Commerce Clause. The Dormant Commerce Clause refers to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce. Of particular importance is the prevention of protectionist state policies that favor state citizens or businesses at the expense of non-citizens conducting business within that state. For example, in West Lynn Creamery Inc. v. Healy the Supreme Court struck down a Massachusetts state tax on milk products because the tax impeded interstate commercial activity by discriminating against non-Massachusetts citizens and businesses. 

[Last updated in July of 2022 by the Wex Definitions Team]

In 1833 the Government passed a Factory Act to improve conditions for children working in factories. Young children were working very long hours in workplaces where conditions were often terrible. The basic act was as follows:

• no child workers under nine years of age
• employers must have an age certificate for their child workers
• children of 9-13 years to work no more than nine hours a day
• children of 13-18 years to work no more than 12 hours a day
• children are not to work at night
• two hours schooling each day for children
• four factory inspectors appointed to enforce the law

However, the passing of this act did not mean that the mistreatment of children stopped overnight. Use the original sources in this lesson to investigate how far the 1833 Factory Act solved the problems of child labour.

Tasks

Background

As the Industrial Revolution gathered pace thousands of factories sprang up all over the country. There were no laws relating to the running of factories as there had been no need for them before. As a result, dangerous machinery was used that could, and frequently did, cause serious injuries to workers. To add to these dangers, people were required to work incredibly long hours – often through the night. Perhaps one of the worst features of this new industrial age was the use of child labour. Very young children worked extremely long hours and could be severely punished for any mistakes. Arriving late for work could lead to a large fine and possibly a beating. Dozing at a machine could result in the accidental loss of a limb.

People began to realise how bad these conditions were in many factories and started to campaign for improvements. There was a lot of resistance from factory owners who felt it would slow down the running of their factories and make their products more expensive. Many people also did not like the government interfering in their lives. Some parents, for instance, needed their children to go out to work from a young age, as they needed the money to help feed the family.

Not all factory owners kept their workers in bad conditions however. Robert Owen, who owned a cotton mill in Lanark, Scotland, built the village of New Lanark for his workers. Here they had access to schools, doctors and there was a house for each family who worked in his mills.

By 1833, the Government passed what was to be the first of many acts dealing with working conditions and hours. At first, there was limited power to enforce these acts but as the century progressed the rules were enforced more strictly. Nonetheless, the hours and working conditions were still very tough by today’s standards, and no rules were in place to protect adult male workers.

Listed below are details of the legislation (laws) that was introduced to improve working conditions in factories.

Teachers' notes

This lesson has a video starter activity based on one of our documents to ‘hook’ students into the lesson tasks that follow.

The first lesson source is an extract from the Factory Inspector’s Report for 1836, three years after the passage of the earlier Factory Act. The second source is a report from 1867. Students can use both to assess the effectiveness of the 1833 Act. Students go onto consider two further visual sources. It is important to evaluate these in terms of their dates and the content they portray. The photograph from 1903 is an interesting piece of evidence. What does it reveal about working conditions and safety in the factory? The image referred to at the top of the lesson of a ‘doubling’ room in 1851, only shows female workers. Why was this the case? Note, doubling meant the yarn was ‘doubled’ after spinning to increase its thickness. The drawing is an artist’s impression, how realistic is the scene? As a whole, students should be encouraged to think about the reliability of this evidence for assessing the success of such factory legislation. What other sources could help us understand how effective it was? Finally discuss with students what other industries were associated with child labour in the Victorian period?

All documents are provided with transcripts. Students can work through the questions individually or in pairs and report back to the class.

Sources

Illustration: Women working in the doubling- room at Dean Mills cotton-mill (between Bolton & Manchester, Lancashire, Illustrated London News, 25 October 1851, p524. Catalogue ref: ZPER 34/19

History Hook Source: C 106/44

Source 1: Extract from a Factory Inspectors report – British Parliamentary Papers (1836) No 353

Source 2: Reports of Inspectors of Factories 1863 (No 3390)

Source 3: COPY 1/501

External links

New Lanark
Site with photographs and information about Robert Owen’s Mill.

Ramsden Wood Mills
This website provides more information about the family that build Ramsden Mill, the source for the History Hook.

https://www.parliament.uk/about/living-heritage/transformingsociety/livinglearning/19thcentury/overview/factoryact/
An overview of the 1833 factory act & 10 hours Movement

Connections to curriculum

Key stage 1 Events beyond living memory that are significant nationally

Key stage 2

Key stage 3