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Bench Memos

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A Mild Dissent From a Mild Defense



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It’s hard to know exactly what moved Senator Schumer to ask Harriet Miers about Meyer v. Nebraska, though I’ll hazard a guess in a moment. But unlike Kathryn’s correspondent, I don’t find the case obscure at all. I regularly use the case in class, and will come to it later this semester, in fact. The case has an honored place in a dishonorable tradition known as “substantive due process,” and though it may look like a decision of minor (if any) importance, you will find it cited by the justices in Griswold, Roe, and Casey.

The real point of the case was the Court’s protection of Mr. Meyer’s “right to contract” with parents to teach German to their young kids in a private Lutheran school (Nebraska having forbidden such teaching in all schools before the ninth grade, in a fit of WWI xenophobia). The ground of the decision was that jack of all trades, the due process clause of the Fourteenth Amendment. Rightly dissenting were two justices with very different approaches to the law, Holmes and Sutherland.

On the basis of some flowery rhetoric in the Court’s opinion, about education, and family, and childrearing and what not, justices faced with wildly different cases years later, about contraception and abortion, seized upon Meyer as some kind of precedent for the protection of “privacy.” Hence the case’s citation in the rulings mentioned above.

And thus also, I’m sure, Senator Schumer’s reason for asking about Meyer. Should Harriet Miers respond with any hesitation to the proposition that there is a general, diffuse, judge-crafted principle of “privacy” lurking in the Constitution, I am sure that Schumer is ready to pounce, saying, “What? You mean you would deny parents any control over the education of their children?”

That’s the set-up. Thus the question.



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