Justice Thomas Avoids Substantive Due Process with Meyer and Pierce

Thomas may attempt to recast Pierce as a Free Exercise case, but it cannot be understood in that fashion.

On June 26, the Court decided Gutierrez v. Saenz. Justice Thomas wrote a thoughtful concurrence that explored the meaning of "liberty" in the Due Process Clause. In that concurrence, Thomas cast doubt on the doctrine of substantive due process. Yet, as I noted, Thomas was a bit cagey about Meyer v. Nebraska, and the right to raise children. I suspect that Mahmoud was on Thomas's mind.

On June 27, the Court decided Mahmoud. As I explained in this post, the Court resolved this case about parental rights with barely any mention of substantive due process. The Court is still suffering from Lochner-phobia. Everything was grounded in the Free Exercise of Religion. For example, Justice Alito wrote:

"[W]e have long recognized the rights of parents to direct 'the religious upbringing' of their children." Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 486 (2020) (quoting Yoder, 406 U. S., at 213–214).

Meyer and Pierce were not limited to "religious upbringing." Those precedents referred to upbringing of children, in all contexts.

Justice Sotomayor's dissent describes the majority opinion accurately:

Here, however, the Court's analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that "the burden in this case is of the exact same character as the burden in Yoder."

Justice Thomas wrote a concurrence in Mahmoud that hinted at substantive due process, briefly. Thomas explains that Yoder was based on Pierce v. Society of Sisters:

In reaching this conclusion, the Court relied heavily on its earlier decision in Pierce, which articulated "perhaps the most significant statements of the Court in this area."

And Pierce, in turn, was a substantive due process case:

While the Court did not decide Pierce on free exercise grounds,[FN4] the context in which Pierce arose confirms that it "stands as a charter of the rights of parents to direct thereligious upbringing of their children." Yoder, 406 U. S., at 233.

[FN4] The Court decided Pierce 15 years before it recognized that the First Amendment's free-exercise guarantee applies against the States. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).

Griswold and other Warren Court cases tried to recast Pierce as a Free Exercise case, but that doesn't work. Lochner and Pierce are cut from the same cloth.

For reasons I do not understand, Justice Thomas doesn't cite his Gutierrez concurrence, or talk about Lochner. He may have made peace with a substantive due process right to raise children, but his cagey about the basis.

At bottom, the Justices don't want to talk about Smith, and they don't want to talk about substantive due process. But now that Dobbs overruled Roe, I do think there is some space to talk about facets of substantive due process that may be correct.

Comments

[not guilty]

The only substantive due process decision Clarence Toady can abide is Loving v. Virginia, 388 U.S. 1 (1967), which he curiously hasn't said a word about.

I suspect that he regards substantive due process, like affirmative action, as a really crappy idea for anyone whose first name is not Clarence or whose last name is not Thomas.

[Brett Bellmore]

Thomas' position, and I think he's right about it, is that 'substantive' due process is an oxymoron, and that incorporation is supposed to happen via the P&I clause.

This doesn't mean that he thinks the incorporation of any particular right was wrong, (Though some of them he thinks the Court just invented out of whole cloth.) just that he thinks the way it was accomplished was.

[ReaderY]

I strongly suspect Thomas would follow Justice Stuart’s concurring opinion in Loving, which was based on the Equal Protection Clause, not on substantive Due Process.

[wvattorney13]

That would be the rather common modern conservative originalist view of Loving. It violates the EP clause because it is a racially biased law. Although it is facially neutral, its purpose is one of white supremacy; that blacks are unfit to intermarry with whites. Thus its purpose is racially discriminatory and runs afoul of the EP clause.

The problem, I will admit, that us originalist run into is that the framers of the 14A addressed this head on and told the public that in NO WAY would their proposed amendment touch anti-miscegenation laws. They said that was a cheap trick used by opponents of the amendment to spread misinformation (or whatever term they used back then).

Something originalists have to deal with and IMHO they have not done so in a principled way.

[bernard11]

The problem, I will admit, that us originalist run into is that the framers of the 14A addressed this head on and told the public that in NO WAY would their proposed amendment touch anti-miscegenation laws.

A common enough problem for originalists. The sales spiel doesn't describe the product accurately.

[Brett Bellmore]

And yet, as soon as the 14th amendment was ratified, the courts began overturning anti-miscegenation laws, and states began repealing them, a trend that screeched to a halt after Pace v Alabama. I wonder why?

Maybe that history you're appealing to isn't as solid as you think?

Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause

[wvattorney13]

Thanks. I'll read it when I get a chance.

[Area Man]

By your own admission, some people thought the 14th Amendment legalized interracial marriage. And as Bellmore points out, soon after ratification, anti-miscegenation laws began to fall by the wayside. Seems, then, that there was at least a partial understanding by the public, the courts, and lawmakers that such laws violated the Equal Protection Clause. To the extent there was a tie in the historical record, it goes to the import of the Clause, which, if it did nothing else, was to place people of all races on equal footing before the law by generally ending state-based racial classifications and discriminations. The only exception recognized by the Amendment was voting (see section 2, which implicitly still allowed raced-based racial voting restrictions). But that was soon remedied by the 15th Amendment. So, the drafters of the 14th Amendment knew how to carve out an exception to the general equal-protection rule, but they chose to do so only for one category (voting) but not others (e.g., marriage).

[wvattorney13]

That was the heckler's point. The parade of horribles. If you support this, then black beasts can marry pure white women! Nonsense, said the supporters and they mocked those people who claimed such an "absurd" thing.

It would be an odd sort of public understanding if the states that passed the amendment, the majority continued to have anti-miscegenation laws. Didn't they see the obvious flaw in their interpretation? Why did it take 100 years and Earl Warren to make them see what you claim is plain?

It is because the Congress that passed the Civil Rights Act, and constitutionalized it in the 14A, expressly told the public that such fears were completely unfounded. States took them at their word and the Supreme Court later agreed in Pace v. Alabama. It's hard to imagine a more clear public understanding.

[Area Man]

I’m not saying it was plain. I’m saying some members of the public, the courts, and lawmakers thought it legalized interracial marriage. They didn’t want that to happen, so they opposed the Amendment. But they believed it did do so. And that understanding was consistent with the language and original general purpose of the Amendment, so, all thing being equal, that understanding wins the day.

It’s an irony, I admit, that the Amendment’s opponents more correctly understood the Amendment’s meaning than its supporters, and that their objections actually help support a meaning that requires interracial marriage. But, that’s how it goes. If the drafters wanted to exempt out marriage (or any other category) like they did voting, they could have. But they didn’t.

[Brett Bellmore]

"Nonsense, said the supporters and they mocked those people who claimed such an "absurd" thing."

I'd like to see the quotes of supporters mocking the idea. That paper I linked to yesterday tracked down many such supposed denials, and found none that clearly denied legality would be a consequence. He did find advocates denying that any law was actually necessary to prevent it. For instance, James E. Bond:

"For my part, I should burn with shame and mortified indignation, if I supposed that any legislation, any Constitutional enactment was required to be thrown around my daughters to shield their purity, and the integrity and high sublimity of their personal virtue."

[MatthewSlyfield]

"The problem, I will admit, that us originalist run into is that the framers of the 14A addressed this head on and told the public that ..."
It's only a problem if you insist on looking a legislative history instead of focusing on the meaning of the actual text enacted.

The problem with legislative history is that you will never have complete agreement across the entire legislative body.

[wvattorney13]

That's not legislative history, it is original public understanding. The public understood anti-miscegenation laws to be perfectly consistent with the 14A because they acted equally on blacks and whites--neither could intermarry so all was equal.

The Supreme Court upheld that view and many states (a majority?) had anti-miscegenation laws on the books after passing the 14A. Did they all miss the plain text? Should they have discerned that Congress was lying to them?

[MatthewSlyfield]

"that the framers of the 14A addressed this head on and told the public that ..."

That is legislative history.

[wvattorney13]

Accepting substantive due process as settled doctrine of the Court, I fail to see how the right of a parent to the care, custody, and control of his or her minor children does not qualify as a fundamental right under the most originalist and strict tests imaginable.

It has been a part of our shared history for centuries and considered implicit in the concept of ordered liberty.

[Charles Epperson]

I think the way we think of substantive due process to me more of an "interpretation" because it is doctrine, meaning court created, not explicit like the 1st Amendment. and not a Constitutional mandate. I think the 14th Amendment has been twisted and torn so many ways to justify everything, like the commerce clause. Doing these twists and turns is just so that favored policy positions can be enacted and does more to harm freedom that to promote it.

Grounding a ruling an an explicit and unambiguous constitution mandate is always better.

[JoeFromtheBronx]

Griswold and other Warren Court cases tried to recast Pierce as a Free Exercise case

The majority used Meyer and Pierce to promote its (short-lived) penumbra approach ("spectrum of available knowledge") on free speech grounds. I'm not sure how it was a "free exercise" thing.

The Supreme Court avoided dwelling on the breadth of the opinions in Epperson v. Arkansas (evolution) -- the challengers during oral argument raised free speech arguments touched upon by a concurring opinion -- resting on other grounds.

Yes, the Meyers/Pierce line of cases was not just about religion. The first case was about teaching a foreign language. Both the Sisters of the Holy Names and Hill Military Academy were involved in the second case. Overall, it was about educating children.

Justice Thomas, in a dissent to Saenz v. Roe, suggests the Privileges or Immunities Clause should be relied upon to protect fundamental rights. Government benefits [in his view*] would not count, but raising children surely would. He grants the right to raise children as a fundamental right in Troxel v. Granville.

Thomas explains in Morse v. Frederick how early public teachers instilled “a core of common values” in students and taught them self-control. The schools, in his view, stood in for the parents ("The teacher is the substitute of the parent").

Furthermore, "Courts routinely preserved the rights of teachers to punish speech that the school or teacher thought was contrary to the interests of the school and its educational goals."

What about parental rights?

"If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process."

He reaffirmed these sentiments in Safford United School District v. Redding (search of student). Justice Ginsburg, e.g., was concerned about them not calling the girl's parents. Thomas was not concerned. The parents put her in the school's care.

I grant his position seems harsh though I won't go on more about the balance warranted in this term's case. I voiced my opinions separately. Overall, however, yes, trying to put everything in the religious liberty basket in the long run is ill-advised.

==

* I don't think his line drawing regarding "governmental benefits" works. Also, Eugene Volokh has discussed how the Constitution protects certain positive rights.

[ReaderY]

I think the early “privacy” cases can be straightforwardly characterized as First Amendment cases. While Pierce, if limited to its holding, could perhaps be limited to religious private schools specifically, I don’t see that there’s any way to limit Meyer this way. Nobody claimed the Meyer family regarded German as a sacred language or wanted to teach it for religious reasons.

However, I think that Thomas’s basic point - that these were both textually grounded First Amendment cases that did not require the Court to come up with its own atextual conception of rights - is correct.

And while Griswold’s grounding is much weaker, I think it could still be grounded in the concept of “institutional autonomy,” with institutional autonomy for married families analogous to that for universities and various other imstitutions historically important to the transmission of ideas. Today, only institutional autonomy for churches survives as a strong concept. And autonomy for churches is based on the Religion Clauses. The concept of institutional autonomy for secular institutions like universities, based on Free Speech, has essentially disappeared. Eisenstadt v. Baird in particular totally rejected the concept as applied to marriages, claiming that any autonomy involved belongs to people as individuals, not to the family as an institution.

[wvattorney13]

Tell me more about this "institutional autonomy" that married couples have and where I can find it in the Constitution.

It would seem to allow me and my wife to violate the contraception laws. Could we also rob banks together in the holy bonds of matrimony? I'm sure not.

What do I look for in a law that allows my bride and I to violate it versus a law we have to obey and be consistent with our "institutional autonomy"? Did Blackstone talk about this?

[ReaderY]

I said the argument was a comparatively weak one. But there is still some connection to Sweezy v. New Hampshire, e.g.

“The essentiality of freedom in the community of American universities is almost self-evident. No-one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straight jacket upon the intellectual leaders of our colleges and universities would imperil the freedom of our Nation.”

Etc.

The gist of Sweezy was that because of the critical role of universities in transmitting ideas to the next generation, the First Amendment protects them from governmental intrusion into their internal affairs. The idea is that individual freedoms can be rendered a practical nullity if individuals are considered only in isolation, without strong autonomous institutions to support them.

I think that University of Pennsylvania v. EEOC all but eliminated the force of Sweezy so far as universities are concerned. And of course Eisenstadt v. Baird didn’t merely repudiate this idea. It expressly found it irrational. I have always thought this conclusion extremely dubious. It’s one thing to say that the majority of ones recent predecessors were wrong. It’s quite another to say they were crazy.

[TheAmazingEmu]

A fair reading of Meyer and Pierce clearly shows they were inspired by the same reasoning as Lochner. Meyer once was reframed as a First Amendment case (and I think there's some logic there), but Pierce can't be justified that way. They've now been framed as parental rights cases under Substantive Due Process.

Justice Scalia was less aggressive than Justice Thomas about reconsidering precedent based on Substantive Due Process. He could justify something like this. Thomas' decision to support a substantive due process case does strongly suggest he likes the result regardless of the legal framework.

[wvattorney13]

Agreed. Pierce and Meyer were equally concerned about the parents freedom to contract with the private educators and the private educators' ability to ply their trade. Pierce and Meyer are really not analogous to modern cases.

Plucking out a sentence here and there from them make them good case cites in briefs.

[wvattorney13]

Yep, from Pierce:

"No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the Act under consideration would be destruction of appellees' primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education."

That is straight up Lochner reasoning.

[ReaderY]

Why can’t the First Amendment justify Pierce? I think you have to say more against the argument than just your own personal word that it isn’t so.

The question here isn’t whether the Pierce court actually used the First Amendment. The question is whether it could have used the First Amendment. That is, could you get to the Pierce result from the First Amendment? The fact that the Puerce court didn’t do so doesn’t prove that it couldn’t have.

[TheAmazingEmu]

Meyer concerned whether you could teach a child the German language outside of school. Obviously, speaking instructions to another person is speech.

Pierce concerned the right to teachers to teach in private school and the right of parents to have their children attend private school instead of public school. If compulsory attendance is constitutional and schools can decide the curriculum of public school (both assumed in Pierce), it's not speech to be able to take children outside of schools and teach them in a separate school.

It's a parental right case. But there's no First Amendment right to not have someone else speak to you if you don't want to hear what they have to say.

[JoeFromtheBronx]

I am not clear on this splitting apart Meyer and Pierce in that fashion. The act of "reframing" will change the original in some respect. That is done regularly when dealing with precedents.

But, granting reframing, Pierce could be framed as a case about determining your child's education, including a type of academic freedom for parents. Not limiting the promotion of the field of knowledge can be framed as a free speech issue.

To the extent it's religious education, this would also be potentially a free exercise matter. It also has establishment implications, especially to the extent that functionally public schools in those days were semi-Protestant. There is also a reasonable freedom of association argument that can be made.

Thomas could simply use the P/I to the same general end and was willing to upend more law to do so. McDonald v. Chicago was a prime case of that. Scalia respected precedent more, which is partially an originalist sentiment, FWIW.

[Brett Bellmore]

The problem is that, when it comes to the 14th amendment in particular, some of the most critical precedents, like Slaughterhouse, are positively anti-Originalist; They represent the Court actively working against the original meaning of the 14th amendment, deliberately getting it wrong.

So you're forced into a clear choice between precedent and originalism, they point in diametrically opposite directions.

I think the Court probably would have bit the bullet and overturned Slaugherhouse, back during the civil rights movement, if it hadn't been for the fact that Slaugherhouse was an economic rights case, so overturning it would have been Lochnerism.

[ReaderY]

If the original meaning of the 14th Amendment had really meant that anybody who wanted to had the right to set up a slaughterhouse anywhere in a crowded city with no regulation, the 14th Amendment would have been a suicide pact.

In a world before antibiotics or other modern medicine, slaughterhouses were a huge source of pandemic disease.

The idea that the slaughterhouse cases were wrong - liberty of contract prevents government from taking the most basic of public health measures against deadly disease - is probably the best argument against a strong interpretation of liberty of contract that can be made.

Limiting, restricting, licensing, and regulating slaughterhouses is about as basic a 19th Century public health measure as they come. If a crowded city can’t do that, then it really doesn’t matter how many people have to die if saving their lives would interfere with profits, does it?

[Brett Bellmore]

"If the original meaning of the 14th Amendment had really meant that anybody who wanted to had the right to set up a slaughterhouse anywhere in a crowded city with no regulation, the 14th Amendment would have been a suicide pact."

And if the regulation they upheld had addressed that sort of evil, rather than just putting almost all the existing butchers out of business and handing a politically connected group a local monopoly, you might in turn have a point.

It wasn't regulation of slaughterhouses, THAT would have been a reasonable exercise of the police power. It was on outright mandate that only this list of favored businessmen would be permitted to run a slaughterhouse, regardless of the manner in which you proposed to run it.

[wvattorney13]

The issue many of us have with the Slaughterhouse cases were not necessarily the facts of the case, but the holding which gutted the PorI clause.

If the holding was a broad PorI clause but the right to unregulated slaughterhouses was not one of them, I don't think we would have a problem.

[TheAmazingEmu]

I explained in a different post. I think Meyer can be justified as a Free Speech case (and has subsequently been justified as one, with parental rights emanating from the penumbra of the first amendment). It concerned teaching German in private outside of school hours. To suggest Pierce is a free speech case would be to suggest there's a first amendment right to not have to listen to what someone else has to say.

They're both classified now as parental rights cases protected by Substantive Due Process. But people like Thomas have criticized Substantive Due Process and view it as hypocritical (basically, Lochner for rights I like, no Lochner for rights I don't like).

[JoeFromtheBronx]

To suggest Pierce is a free speech case would be to suggest there's a first amendment right to not have to listen to what someone else has to say.

The case involves sending your child to a certain type of school. Meyer involved teaching German. Pierce involves teaching, too. The school your child goes to will have a variety of free speech issues. Anyway, yes, freedom not to listen is part of free speech.

It concerned teaching German in private outside of school hours.

The opening of the opinion stated the facts:

Plaintiff in error was tried and convicted in the District Court for Hamilton County, Nebraska, under an information which charged that, on May 25, 1920, while an instructor in Zion Parochial School, he unlawfully taught the subject of reading in the German language to Raymond Parpart, a child of ten years, who had not attained and successfully passed the eighth grade.

Where do you get this "in private outside of school hours" idea? Brandeis, in a separate case, raised the possibility of parents being denied the ability to teach pacifism at home. This is not that.