Today in Supreme Court History: November 7, 1922

11/7/1922: Oregon enacts the Compulsory Education Act.

Sisters of the Holy Names of Jesus and Mary

Comments

[Hugh]

Despite the attempt by professors Blackman and Barnett to reframe the children in this case, this is a classic substantive due process case, written by the most conservative and bigoted judge of the 20th century (Alito's predecessor). It gives a lie to the claims of Thomas that this is a recently made up doctrine.

[JoeFromtheBronx]

His conservative and bigoted nature is duly noted, but the opinion was unanimous. Indeed, substantive due process is not a novel doctrine. This has been addressed on this blog before.

The term "substantive due process" has a certain opaque flavor. The general idea often is that judges are deciding the legitimacy of laws using subjective policy judgments not tied to anything else.

Thus, the term is often not applied when the Due Process Clause is applied to the states to protect free speech. That is a specific enumerated constitutional right. McReynolds argued "liberty" includes various unenumerated liberties.

This opinion is sometimes translated into a First Amendment case. It is okay and sometimes done that past cases are seen through a new lens. Meyer v. Nebraska and Pierce v. Society of Sisters, however, are also widely seen as doing more.

They still have staying power.

[The Margrave of Azilia]

Even under the Court's broad interpretation of due process, I see nothing which entails a "right" to sexual license, or a "right" to kill children in the womb.

The Pierce Court said:

"Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control"

https://supreme.justia.com/cases/federal/us/268/510/#tab-opinion-1930961

The predecessor case of Meyer v. Nebraska, cited in the above passage laid out the following view of the Due Process Clause:

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

https://supreme.justia.com/cases/federal/us/262/390/

If the Pierce Court was trying to establish a right to abortion and secular license, it escaped the attention of Pope Pius XI:

"This incontestable right of the family has at various times been recognized by nations anxious to respect the natural law in their civil enactments. Thus, to give one recent example, the Supreme Court of the United States of America, in a decision on an important controversy, declared that it is not in the competence of the State to fix any uniform standard of education by forcing children to receive instruction exclusively in public schools, and it bases its decision on the natural law: the child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty, to educate him and prepare him for the fulfillment of his obligations."

https://www.vatican.va/content/pius-xi/en/encyclicals/documents/hf_p-xi_enc_31121929_divini-illius-magistri.html

Did the Justices trick the Pope into endorsing the placement of anti-life, pro-sexual-license concepts into the U. S. Constitution?

(This forum being what it is, I should emphasize that of course I'm not saying the Supreme Court was deferring to the Pope. I'm saying that the Pope wouldn't have endorsed the decision if it was a forerunner of Roe and Obergefell.)

[Frank Drackman]

Which one is Sister Mary Elephant?