[David Bernstein] The Supreme Court's Mysterious 1920s Due Process Education Trilogy

[My new article is available on SSRN]

You can download it at this link.

Abstract:

The Supreme Court's 1920s Education Trilogy cases–Meyer v. Nebraska, Pierce v. Society of Sisters, and Farrington v. Tokushige–were important milestones in American constitutional history.

These decisions protected private schools, religious and otherwise, from the threat of closure in many states. This preserved educational freedom for parents who preferred private education for their children.

As a constitutional matter, the Trilogy became the foundation of a due process jurisprudence that moved beyond liberty of contract, property rights, and police power considerations to a broader protection of fundamental rights.

This Article describes external forces that may have motivated this shift—revulsion at the Ku Klux Klan, backlash against Progressive statism of the sort that demanded the closure of private schools, and the Justices' need to cultivate political allies among ethnic and religious minority populations.

This Article also reviews the idiosyncratic biographical factors that may have led Justice Brandeis to join the majority in Meyer. Brandeis' vote with the majority helped preserve the Education Trilogy cases as precedents that later generations of liberal Justices felt comfortable relying upon.

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