Pierce v. Society of Sisters [SCOTUSbrief]

When Oregon passed a compulsory public education law in 1922, a group of religious sisters objected to the proscription of private educational institutions, taking their case all the way to the Supreme Court.
How much authority do states have to mandate public education? Prof. Richard W. Garnett of Notre Dame Law School discusses substantive due process and parental rights in Pierce v. Society of Sisters.
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As always, the Federalist Society takes no position on particular legal or public policy issues. All opinions expressed are those of the speaker.
Learn more about Richard W. Garnett:
law.nd.edu/dir...
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Related Links & Differing Views:
The First Amendment Encyclopedia: “Pierce v. Society of Sisters”
www.mtsu.edu/f...
Oregon Encyclopedia: “Pierce v. Society of Sisters”
www.oregonency...
Constitutional Commentary: “The Little Red Schoolhouse: Pierce, State Monopoly of Education and the Politics of Intolerance”
scholarship.la...
Regent University Law Review: “Defending the Parental Right to Direct Education”
www.regent.edu...
Vanderbilt Law Review: “The Paradox of Family Privacy”
scholarship.la...
Washington and Lee Law Review: “Parental Rights: Educational Alternatives and Curriculum Control”
scholarlycommo...
Akron Law Review: “The Contemporary Significance of Meyer and Pierce for Parental Rights Issues Involving Education”
ideaexchange.u...
West Virginia Law Review: “The Supreme Court, Compulsory Education, and the First Amendment's Religion Clauses”
chicagounbound...

[@LegalesePodcast]

This definitely seems like a landmark case that should have been covered in law school. As best I can recall they never taught, or even mentioned this case. Even in 2L/3L con law..... How did they apply the 14th amendment. Privileges or immunities is the most logical path to protecting ordered liberty, but given this is the 1920's I'm guessing they tried to shoehorn it into the due process clause. Did they draw such a distinction or merely rely on the 14th amendment generally without getting clause-specific?

[@tomhalla426]

By my understanding, the Slaughterhouse Cases made the privileges and immunities clause of the 14th Amendment a near dead letter. Substantive due process was a partial rollback of that Counter Reconstruction case, but only Thomas wants to eliminate the Slaughterhouse Cases reading entirely, and directly make the Constitution as a whole directly controlling state laws.

[@gopher7691]

Substantive due process strikes again. This is the same way we got Dredd Scott.

[@iMatti00]

I think you have a Fairpoint. But what’s the alternative in your view about how to deal with stuff like this?
And on a separate but possibly similar note, do you believe the Supreme Court’s “right to travel“ (between states) fundamental right in the constitution, at least that they claim is in the constitution, is a valid ruling?

[@gopher7691]

@@iMatti00 the fourteenth amendment due process clause only prohibits the state from executing you, incarcerating, or fining you without due process of law. It is not a blank slate onto which justices can write in their preferred policies on abortion, gay marriage, slavery or what have you.
The constitution placed a lot of trust in the people and their representatives at the state level. It is far better to place our trust in them than in 9 unelected justices when deciding things not explicitly addressed in the constitution
Right to travel was used by unscrupulous justices to force states to give welfare to people who moved in from out of state. That is is an abuse of their interpretative authority. Other than that what state has tried to restrict your right to travel?

[@gopher7691]

@@iMatti00 right to travel to do what? If you are traveling from Indiana to Ohio to rob a bank in Ohio can Ohio or Indiana have a law prohibiting that travel? I would say yes. And I don’t think the constitution has anything to say about it. Same me with traveling for better welfare benefits. The state can have residency requirements for welfare. It doesn’t stop anyone from traveling
TRavel to obtain an abortion? Abortion is illegal in Mississippi. If you travel from there to New York to kill the unborn human being in your womb I suppose Mississippi could make that illegal. Mississippi is not stopping you from traveling, it is stopping you from killing. It would be difficulty to police this though. Sorry Brett Kavanaugh. You are wrong

[@iMatti00]

@@gopher7691

[@gopher7691]

The word “ liberty” in the context of the fourteenth amendment only has to do with incarceration. It is not a blank slate onto which justices can write in their policy preferences

[@gopher7691]

It seems like this should be a constitutional right but it isn’t. The court got it wrong. I would have opposed this awful, bigoted law but I don’t think it was unconstitutional.

[@iMatti00]

I think you have a Fairpoint. But what’s the alternative in your view about how to deal with stuff like this?
And on a separate but possibly similar note, do you believe the Supreme Court’s “right to travel“ (between states) fundamental right in the constitution, at least that they claim is in the constitution, is a valid ruling?

[@gopher7691]

@@iMatti00 if the motive is anti catholic bigotry, as it clearly is here, the free exercise clause in the first amendment should be sufficient. No need to distort the meaning of the fourteenth amendment.

[@gopher7691]

@@iMatti00 right to travel isn’t in the constitution

[@iMatti00]

@@gopher7691- If you think that the Supreme Court should not ensure people have the right to travel between the states, then how do we prevent a continuation of what they did after the Civil War where they literally would not let Black people leave the state? They didn’t want the slaves to leave, so they may Wednesday. Ronald Reagan said you can vote with your feet, but what do you do if they literally throw you in prison to become an actual slave if you won’t work for pennies on the dollar as a practical slave?

[@gopher7691]

@@iMatti00 if the constitution doesn’t say anything about it SCOTUS is powerless to do anything about it. Do you honestly think that is a possibility now?
Travel to do what? If you are leaving state A to commit a crime in state B then state A can detain you