It is a distinct honor to be invited by the Stanford Constitutional Law Center to moderate this morning’s opening panel on the backstory of the Supreme Court’s decision in Pierce, actually it’s Pierce versus Society of the Sisters of the Holy Names of Jesus and Mary, which for each for ease of reference, I will simply say Pierce.

I’m joined on the panel this morning by three distinguished professors, each of whom will have presentations of about 10 minutes or so. I hope to save half an hour for questions and comments from the audience after we have an internal discussion among the panel members first and unfortunately, because she had a family emergency, which we hope is not too serious.

We have Professor Linda Gordon of New York University, an eminent historian who has written and published numerous articles and books about America’s political and social history. Professor Gordon will discuss the genesis of the campaign to prohibit Catholic schools nationally, and more specifically, the Ku Klux Klan prominence in Oregon at the time of the pure decision.

I, Linda you’re right behind me and I say welcome and it’s good to have you here. Thank you. And I hope you’re, I hope all is well at home. Thank you. Alright, next we have Robert Post. The former Dean of Yale Law School and currently Sterling Professor of Law, specializing in constitutional law with an emphasis on the First Amendment.

Dean Post will discuss Pierce in light of the larger, substantive due process, concerns of the Supreme Court at the time, including its efforts to suppress the unlawful violence associated with the Ku Klux Klan to complete the panel. We have Professor Nathan Chapman of the University of Georgia School of Law.

Professor Chapman will discuss the state law background of Pierce’s unusual constitutional reasoning, specifically the state common law, constitutional law, and natural rights decisions underlying the Supreme Court’s declarations of parental rights. Now, I can’t resist sharing some personal resonance with the Pierce decision.

Throughout my nearly 40 years as a federal judge, I became fascinated by Pierce’s role in Oregon’s history and its significant impact on private education, parental rights, and religious freedom. I published an article in 2007 about the due process reasoning in Pierce and the unforeseen consequences that it’s spawn.

I never expected to hear much about this issue again. So congratulations to Judge McConnell and to Stanford Law School for reviving the discussion of Pierce and for arranging this auspicious conference. I’m very fortunate to serve in the 100 and 50-year-old Pioneer Courthouse in Portland, Oregon, the oldest federal courthouse west of the Mississippi River.

My chambers are located on the third floor, and the Pierce case was argued directly below in the second floor courtroom before a special three judge panel of the United States District Court of the DIS for the District of Oregon. Pursuant to a 1910 federal statute, which has since been repealed, a three judge district court was required whenever a plaintiff sought an injunction against the enforcement of a state law.

Federal constitutional grounds. The panel included two district judges and a late member of my own court, the United States Circuit Judge William Ball Gilbert, sitting by designation, who was the first Oregonian to be appointed to the Ninth Circuit. Of course, today I speak only for myself and not for my colleagues.

On the Ninth Circuit Court of Appeals, I will offer a short overview of Pierce’s litigation backstory, which my fellow panelists will develop in greater detail. In 1922, Oregon voters passed an initiative that required Oregon parents to send their children to public schools and impose fines as well as prison terms for non-compliance.

The Society of Sisters was and still is. An Order of Catholic nuns who ran several boarding schools in Oregon, including St. Mary’s Academy, founded in 1859 and located in downtown Portland. Incidentally, St. Mary’s Academy continues to this day as a thriving all girls Catholic high school, and one of my daughters is a graduate.

The sisters feared that this new Oregon law called the Compulsory Education Act would deprive its boarding schools of critical revenue and enrollment. They also asserted that the new law would deprive Catholic parents of the ability to have their children receive religious training and schooling, and so they sued in federal court.

The sisters lawsuit was consolidated with another plaintiff, an Oregon non-religious private school, the Hill Military Academy, located in Salem, Oregon. The sisters argued for religious freedom, but interestingly, they did not invoke the Federal First Amendment free exercise clause, presumably, possibly because that clause would not be incorporated against the states until 1940.

The sisters instead claimed that the act deprived them of liberty without due process focusing upon the freedom of parents to send their children to private schools that offered religious training as well as general education. On March 31st, 1924, the three Judge District Court issued its ruling.

Joining the statute based upon the school’s rights to economic liberty and substantive due process grounded in the school’s property rights. Despite the sister’s strong interest in religious education, the district court did not discuss religious liberty at all. Instead, the court granted relief on economic liberty grounds to both the religious schools and the non-religious private school.

The state of Oregon appealed under existing procedures at that time directly to the Supreme Court. Rather than defend the narrow reasoning of the district court, the sisters argued that both their property rights and their liberty interests were at stake. Noting that they had strong religious interests and they expected the Supreme Court to sit in impartial judgment upon all faiths and creeds.

Fascinatingly, it was the state of Oregon’s Attorney General who expressly raised the possibility that the Supreme Court could incorporate the free exercise clause, but to apply it to defeat the sister’s claims. He argued that the free exercise clause would validate state laws that only indirectly limited religious freedom.

His brief cited the Supreme Court’s 1878 ruling in Reynolds versus the United States that Mormon believers did not have a First Amendment right to an exemption from anti polygamy laws. He further argued that such precedent required the court to uphold the law as within Oregon’s legitimate interest in having all immigrants taught English by the state, so they would learn the character of the American government, the state, having raised the religious issue, the sisters seized the opportunity at oral argument to make a not so subtle claim that the Oregon law was in fact motivated by anti-Catholic animus.

anti-Catholic innuendos were obvious from the State’s briefing, which included complaints about proper immigrant assimilation at a time when many immigrants were Catholic. The sisters argued that this was essentially an admission by the state regarding the real purpose of Oregon’s law. Yes. Their claim was reflected in the public perception of law At that time.

Historical evidence has shown, and Professor Gordon will tell us more, that the most active supporters of the law were indeed members of the Ku Klux Klan. On June 1st, 1925, 100 years ago, almost to the day, the Supreme Court ruled against the state of Oregon and in favor of the Sisters and the Hill Military Academy.

Remarkably its Pierce decision did not rule on religious liberty grounds. The court instead cited its 1923 case Meyer v Nebraska, which held that a state law banning the teaching of foreign languages and public schools violated the due process rights. Both of teachers to teach and parents to control their children’s education.

The Supreme Court held in Pierce that, and I’ll quote under the doctrine of Meyer versus Nebraska, we think it entirely plain that the Oregon law unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control

significantly. The court shifted away from the economic basis of the District Court’s decision and did not even mention the religious liberty issues. Instead, the Supreme Court articulated a new form of parental liberty that is unconnected to economic or religious rights. Thus giving a victory to both religious and non-religious private schools, but the holding also heralded a substantive due process jurisprudence that went beyond property rights and police power into a wider spectrum of due process protections of individual liberties.

Thus, the theme of this conference, a century after the Pierce decision is a deeper exploration of the appropriate balance between the interests of the state and families, between children and their parents, and between the secular and religious spheres of today. With that legal background, I’ll now turn to Professor Gordon, who will discuss in greater depth the social and political climate of the 1920s in Oregon.

Which some of you will find quite surprising. Leading up to the Pierce decision, may I call on Professor Gordon? Thank you. I figured you would not have asked me to come here to talk about the the legal aspects. I’m gonna say a few words about the context. First of all, when I tell people that Oregon was a stronghold of the Klan, they’re surprised, and I was shocked when I first learned this because I grew up in Oregon and I thought of Oregon and Portland in particular as liberal, even progressive.

The Oregon history we learned in the school was about pioneers we were meant to honor. I never heard a thing about the Ku Klux Klan in school yet, from the mid 19th through the mid 20th century, Oregon was arguably the most racist state outside the south. A host of discriminatory laws aimed to keep it white, keep it all white, and Ku Klux Klan recruiters knew this and understood Oregon as fertile ground.

Its population of about 800,000 in the 1920s was overwhelmingly Protestant and white blacks constituted 0.03%. Catholics, 8% Jews of 0.1%. It had a long history behind this bigotry. In 1844, the territory ban slavery, but at the same time mandated that blacks should be excluded from the state. In 1857 in a referendum on future state constitution the results showed that while 75% of those who voted opposed slavery, 89% voted to exclude people of color.

While at the same time the state voted to offer free plots of from 650 to eight 1300 acres free to white settlers federal law prevented Oregon from expelling blacks who were already there. So it compromised in a state constitution that banned blacks from entering voting or owning property in the state.

Well forced to vacate these regulations in 1862. It leveled a $5 annual tax, and I would point out that would be worth about $160 today tax on African Americans, Chinese Union, and other multiracial people who remained there. Interracial marriage was banned in Oregon until 1951. Oregon ratified the 14th and 15th amendments only in 1958 and 1973 respectively.

The plans anti Catholicism had also had long national ruts, none other than Lyman. Beecher, the country’s most revered 19th century evangelical charged in 1835 that children were being poisoned by textbooks, whose content was dictated by the Pope. A century later an organization called the Federation of Patriotic Societies campaigned to require candidates for office or public jobs to declare their religious allegiances effectively making Protestantism a required qualification for running fors.

Now, the Northern Ku Klux Klan I need to emphasize though probably many of this did not focus. On African Americans in the North and especially in Oregon, they constituted only a very small population. Still it connected its collect case against Catholics was Southern News about blacks in Oregon, for example, it showed the film Birth of a Nation frequently between 1915 and 1922, it drew large audiences despite an unusually high admission price of $2 worth, about $37.

Today was a big money maker for the clan in Oregon. The Klan’s religious bigotry connected to. Evangelical campaigns to outlaw dance halls, speakeasies movies, flapper fashion, claiming that these sinful practices were being encouraged by Catholics as a means of corrupting and weakening Protestants.

Elsewhere in the US this allegation was directed against Jews based in part on the disproportional, disproportionate role of Jewish gangsters in running illicit wholesale liquor sales. Unsurprisingly, in Oregon and elsewhere, this particular part of the Klan agenda was spectacularly unsuccessful.

Plenty of Klansmen drank, and that hypocrisy would ultimately contribute big time to the Klans triage. Now the anti-Catholic Ag agitation. But also elsewhere centered on schools in the name of a national patriotic revival. This campaign to Outlook co Catholic schools was nationwide. It didn’t work.

However though similar bills were proposed in California, Michigan, Oklahoma, Texas, Washington and Alberta, Canada, only part of passed now building a case against Catholic schools. The was actually part of what historians would call the progressive, that’s capital P concern that Americans needed to educate children better and more patriotically.
Unlike the more recent right wing, the Klan called, not for cutting taxes, but for increased spending on public schools, including I would point out higher pay for teachers in a federal department of education. Another agenda item like immigration and fiction that they shared with many progressive reformers of the time.

So the Klans art strategy deemphasized the repressive nature of their anti Catholicism and emphasized instead, the positive, the value of a universal public educational system and the need for unity by which they essentially meant conformity in what children learn. Deploying art’s sentimental reverence for the quote unquote pioneers which had brought Euro Americans to the state.

It defined its agenda as furthering the goals of the forefathers who established the nation. And these goals required building Americanism through educating all children in the same public schools. In 1922, the Oregon clan was a major, possibly even a dominant power in state politics. It was able to reduce a referendum on its school’s amendment.
The Republican candidate for governor refused to support the amendment while the Democrat Walter Pierce wasn’t ardent clan allies Ally, excuse me I’m sure most people in this room know that at this time it was the democratic part. That represents represented the South, while Republican electoral strength arrested not only on northern capital, but on also on many working class voters still pierce.

Governor Pierce’s strategy was a stealth strategy and also an incoherent one. He campaigned for cutting taxes. While not mentioning that banning Catholic schools would require higher taxes to support the public schools, his astute advisors encouraged tailoring their message, particularly to win over newly enfranchised women.

One piece of advice to canvassers on behalf of the Rec of the Referendum said, and I quote, better tell no religious jokes now that women are voting. Indeed the referendum actually brought a record turnout of women voters over and over. Pierce emphasized his Protestant lineage. Quote, every one of my ancestors has been a Protestant for 300 years, but voters knew that the contest, excuse me which many historians have registered as the bitterest and closest political campaign in Oregon.

History between testament, between supporters and opponents of the clan. Pierce won the governorship overwhelmingly, he carried 28 of our Oregons 36 counties. Clan delegation took over both both houses of the state legislature where the speaker of the house was a key clan ally, nevertheless.

The school’s amendment only passed by a slimmer majority than that for the legislatures. It passed by by a plurality, a majority of 17% of the 210,000 votes that were cast. Despite the rhetoric about rural pioneers the city of Portland provided the biggest per capita majority contrasting with other American cities, which tended to have a great greater tolerance for diversity.

Portland’s mayor joined the Klan, posed for a formal photograph with the Klansman, along with the chief of police. The largest majorities were in precincts inhabited by middle class and skilled working class voters. Voters who had been most supportive of prohibition while farmers and lower working class Oregonians were less enthusiastic.

In other words, as elsewhere, when you look at the clams history in that period, that the economic top and the bottom were less clean on their anti Catholicism. As you all know, opponents of the schools amendment resorted to the courts and they won. The Federal district court ruled in 1924, as you have just heard.

And argued that in its in its opinion that the problem was depriving parents of their rights pri private school teachers of their livelihood and private schools of their property without due process. In other words, property rights loomed large in the campaign of those who were against the against their referendum.

Governor Pierce immediately announced an appeal to the Supreme Court, won Oregon newspaper editorialized. And I quote, the people will not stand for any half dozen judges telling them that an overwhelming majority cannot make their own law. We cannot understand why foreign minorities in America are ever listened to by our courts.

The former Oregon governor born in Mississippi and also former a former US Senator George Chamberlain, argued the case primarily on states’ rights basis, but lost. As you all know, the Oregon legislature did not give up easily giving up the campaign to prohibit Catholic schools. It used a variety of other Americanism school legislation.

It’s prohibited wearing religious dress in the schools. It argued for firing teachers who did that. The relevance of this is that even in the public schools, about 20 nuns were teachers hired in those schools. Prefiguring today’s far right agenda, the statutes required exclusive use of textbooks that quote unquote adequately stress the services rendered by the men who achieved our national independence, who are established our form of constitutional government, and they banned, wanted to ban any textbook.

That quote speaks slightly of the founders of the Republic, or which belittles or undervalues their work. Nationally, the Klan was promoting these kind of americanizing St. Bills in many states. But even those who stood for public education did not by any means intend to ban state mandated religious teaching in the schools.

State plans produce a variety of school regulations aimed at requiring or privileging Protestantism, eliminating the Columbus Day holiday because Columbus was of course, working for the glory of the Pope prescribing a compulsory uniform textbook and a textbook commission to scrutinize all texts to which students were students were exposed and to license.

Acceptable ones requiring teachers loyalty, oaths, hiring only teachers trained in public schools, installing required readings from the Protestant Bible each day without comment. Obliging schools to give pupils release time for religious study setting one evening a week in which schools and churches would coordinate religious education and compelling colleges and universities to grant credit for religious study in authorized churches.

I mentioned this of course, because it is really important to understand that the defeat of this particular constitutional amendment did not necessarily change a lot of what was going on in the public schools in Oregon. They also sought many of these activist to mandate curriculum.

Including requiring the Protestant, requiring teaching the Protestant Bible’s story of creation and of the expulsion from Eden, Oregon. However, even though all this was going on through many states, Oregon remained the Klan’s premier achievement after its loss. In the 1925 scopes trial, Oregon leaders ever pragmatic changed their strategy to campaign to have creationism taught in the school alongside evolution.

Evolution. In the years since then, Oregon politics continued to nurture right-wing causes. I should point out something that’s much less widely known. And that is I. Figures in my most recent book that in the 1930s the clan in Oregon, but elsewhere throughout the nation, gave rise to the many American fascist groups, which proliferated in the 1930s.

Many of them supported not only ideologically, but financially by the Third Reich. Professor Gordon, thank you so much for bringing us up to date to the time of the Pierce decision. It’s interesting to hear what happened afterward. But I think our focus is going to be on 25. No, I think it’s very important to hear what’s going on afterward.

I’m sorry, I don’t agree with this. Okay. Ar was a locus of operation, coordinating water a locus of anti-vaccination sentiment despite resurgent cases of measles and working whooping costs. The relevance of this is about the nature of Oregon and the continuing influence of the 1920s right wing.

Thank you. Thank you very much.

Thank you very much Professor Gordon. And we very much appreciate your willingness to be with us, even through the magic of Zoom. And please feel free to participate in the discussion. That will follow our other two speakers. Our next speaker will be professor Dean Robert Post of the Yale Law School, who will probably focus on the larger, substantive due process issues among others.

Professor Post make sure you say former dean on that. Okay. Former forwarding. Okay. I’m free. Okay. So we’re gonna talk now about substantive due process. You all know about Lochner 1905, the movement toward what we now call substantive due process begins in the late 1890s. And it’s it’s canonical expression is in Lochner versus New York in 1905.

And this is the court’s effort to control social and economic legislation using the due process clause of the 14th amendment. That’s what we’re talking about when we talk about substantive due process. And the court is very aggressive in this until 1912. You might remember in 1912 Teddy Roosevelt runs for president on the platform of the progressive party, and that calls for the recall of judicial decisions.

This terrifies the court, and between 1912 and the 1920s, the court backs off this policy of substantive due process. And then along comes World War. I remember in the turn of the century, the United States was a country in which every social and economic legislation is challenged under the due process clause in which every attempt to centralize power in the federal government is challenged in the name of Federalism, world War I comes along and suddenly the United States learns.

That in a modern world, you cannot win an industrial war unless you completely take control of and transform the economy. This is what Germany had done. This is what the United States had to do under Woodrow Wilson, and suddenly, if you can imagine this, the United States nationalizes the railroads. It nationalizes the merchant shipping, it nationalizes the telegraph and telegram companies.

It sets universal price controls. It sets a universal labor policy, which guarantees the recognition of unions and a living wage. This is the total new deal. In fact, when Roosevelt is elected in the thirties, he revives almost all the policies of World War I. This came as a total shock to a nation which had believed that there were constitutional limitations.

To the regulation of social and economic phenomena and which set radical limits on the authority of the federal government. It was horrifying to the country. And so after November, 1918, when the armistice comes, the country moves savagely to the right, which Wilson is rejected. Harding is, you might recall, elected on a wave to return the country to normalcy.

Normalcy means before World War I. That’s how it cashes out in the mind of the country. World War I is this critical, traumatic moment and you cannot understand anything that happens in the twenties unless you see it. In light of the shadow, the long shadow that is cast by World War I and the 1920s is a time of enormous ambivalence.

It’s a time of nostalgia. Looking back, you heard Professor Gordon talk about the clan and also looking forward, you remember Robert Wee’s book, the Search For Order. So on the one hand the country is taking the administrative techniques they learned in World War I and applying it to the railroads.

The Transportation Act of 1920 is the first completely national regulation of. The railroads, for example. And on the other hand, the country wants to go back to Henry Ford Recreation Colonial villages, and Harding reflects this ambivalence. Harding appoints to his cabinet, Andrew Mellon, who represents old style Republicanism and Herbert Hoover.

Herbert Hoover was the progressive Republican who ran the food administration during World War I and was a classic progressive. And this was a very audacious thing to do. Henry Cabot Lodge says to him, I don’t want Herbert Hoover in a platform. He’s too progressive. Herbert Hoover and Harding says to him, you get melanin Hoover, or you don’t get melon.

So this is very self-conscious by Harding’s part. He wants to split the difference between taking what the country had learned administratively from World War I and also returning to old values. And the appointment of William Howard Taft as Chief Justice in 1921 is reflects that ambivalence. Taft had been a very you might not know this, a progressive president.

He was one of, he was a Cracker Jack administrator Henry Stimson, who served under presidents from Taft to Harry Truman said Taft was the best administrator of any president that he served under TAF creates the federal budget. And yet Taft is a notable Stan Patter. He’s a notable conservative.

So Taft reflects the ambivalence that I just described, and you cannot understand constitutional jurisprudence, including Pierce, unless you understand a court caught in this ambivalent attitude toward the toward modernity who Harding in 15 months of 0.4 justices and his. His effort was to push the court back toward normalcy, what he called normalcy.

And he does that. He has very effective in appointing Justices Butler, Sanford, Taft. And who else did he appoint? Pierce Butler and Sutherland. And the court on the one hand affirms the Transportation Act of 1920, affirms intimate regulation, mostly of what it would call property affected with the public interest, but also revives Wachner in 1923 and is the signature decision in a case called Adkins.

The court strikes down minimum wage legislation for women in the District of Columbia. Sutherland writing it saying Freedom of contract is the general rule, and restraint is the exception. Citing extensively locked her. Which Taft had believed to be overruled actually. And this now becomes the signature of the Taft Court, which fiercely and aggressively revives Lochner versus New York and sets the stage for the great confrontations of the 1930s.

In the New Deal. When you think about freedom of contract at that time, you can’t make modern distinctions as we do between liberty and property. There was no distinction for the members of the court In the 1920s, Liberty and Property had technical meetings. For example, the plaintiffs and peers, because they were corporations, could not as a technical matter claim liberty interest, they could only claim property interest.

But the court viewed this as interchangeable. Liberty and property were all aspects of the person which the court used the Constitution to protect. And you can see that very clearly in the case, which is the predecessor to Pierce. And the most important case. For understanding peers, which is a Meyer versus Nebraska.

This case is decided in 1923. In June of 1923, it strikes down a law that prohibits the teaching of foreign languages to students before the eighth grade and of offering private instruction in foreign languages. This is an example of the hysteria during World War I. It was an anti-German statute and it was statutes like this had swept the country.

This is not a unanimous opinion, Holmes dissents in this opinion, and George Sutherland dissents in Meyer versus Nebraska. But Meyers is written by McReynolds who also writes Pierce and Meyers is the best example that I know of conservative legal thought in America at the turn of the century.

And it’s almost impossible for moderns like us. To understand the way conservatives understood the Constitution in the 1920s. Member, we are all heirs of Oliver Wendell Holmes. We are all heirs of positivism. We think of law as the expression of the sovereign. That’s what Holmes argued. Therefore, when we say what is the law, we say, where is the text in the Constitution?

You were asking about the free exercise clause. Because the instinct of the modern is to look for the text and say the text is the will of the sovereign and therefore expresses the law. But elite lawyers at the turn of the century would deny that they condemned legislation. They said legislation. And I’m quoting now from, I’m just gonna pick an array of a BA presidents addressing the a BA convention.

So this is standard stuff. They would condemn legislation as, and I’m quoting a me. Mere product of sovereignty or legislation was quote, the mere product of popular will or of the legislative majority of the hour. And they would contrast legislation to law. Legislation wasn’t law, but they would say, and I’m quoting now from another a, b, a address quote, the lawyer makes a sad mistake.

Who supposes law to be the mere equivalent of written enactments or judicial decisions. Law is the opposite of what we consider law. We are the heir of homes. Holmes invents the way we think about law. But at the turn of the century, the legal elite viewed legislation as this. They viewed it as quote, commands imposed upon society from without, either by an individual sovereign or superior, or by a sovereign body constituted by representatives of society itself.

What was law. Law was custom and tradition. Law was the elements of society spontaneously ordering itself. And the premier thinker of this idea of law was a, was the Dean Doan of the New York Bar called James Coolidge Carter. We’ve known of you remember him, but interestingly, every lawyer like Harlan Stone, who grew up in New York, worshiped this man.

He was oddly to American eyes, very influenced by Hagel and he understood what law to be. Law was the crystallization of national custom. And it law was superior to any artificial, manmade law, artificial mechanical, manmade law like legislation and judges were the experts in reading the customs and traditions of society, which is why judges could set aside legislation under the substantive due process clause.

And you can see the best expression of that in this passage right here. He says, we haven’t defined exactly what liberty is. But without doubt, it denotes not merely the freedom from bodily restraint, but also the common occupations of life to require useful knowledge to marry, to establish a home, to bring up children, to worship God according to the dictates of your conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Okay. And the state cannot arbitrarily interfere with this. That’s mere legislation. So the essence of law were these customary truths. Now several things we should notice about this. The first is that substantive due process is about liberty. Here, it’s not about class. Many historians have said that substantive due process prevents class legislation.
That was true in the late 19th century. By the time you get to the 20th century, and certainly after World War I. Substantive due process was about the sphere of liberty, which McReynolds is describing here. Second substantive due process protects the values that are enshrined in customs. And these are values, these are not texts.

He’s not looking for the free exercise clause, he’s not looking for the free speech clause. He’s looking for how people live their lives and understood to be what to be important in their lives. So this is not the history and tradition of Dobbs. The history and tradition of Dobbs is about, is in the, in it reflects the legacy of homes.
Alito is looking for history and tradition as a fact, not as a value the way this is a value. And if you think about values being at the essence of constitutional law before homes, think about Caroline products 1938, if you remember that footnote four. In Caroline products, three paragraphs only. The first refers to text.

The other two refers to values exactly like this as a values. So this is custom and tradition in the way. For example, Griswold Goldberg’s opinion or Harlan’s opinion in Griswold or Poe versus Elman would talk about history and tradition, not the way the modern court Kavanaugh talks about it in Rahimi or the way Alito talks about it in Dobbs.

And they would read this history and tradition into the 14th Amendment into the due process clause. And they would identify the due process clause with the common law. That’s the essential move being made here. This describes the way the court imagined itself as a constitutional court. It imagines itself, constitutional court means a common law court, and this was a highly politicized understanding of the liberties required and protected.

By the due process clause, they were the liberties necessary to exercise Republican citizenship. And that theme is put into Meyer as a backstory to Pierce because the Oregon statute that was enacted in Pierce is enacted on November 7th, 1922. Meyer is not argued until February 23rd, 1923, and when the National Catholic Welfare Conference.

Saw the enactment of this Oregon statute. They knew that they were gonna test it, contest it constitutionally, and they knew that Meyer would be the big precedent. So within weeks, they went out and hired William Guthrie. You all know William Guthrie? He was one of the deans of the New York Bar. He was a major Catholic.

He earned his reputation because at the age of 36, he struck down the federal income tax in Pollock versus farmer’s loan. And they hired him to file a brief in Meyer and to say, I want you to decide this case in a way that would allow you to strike down the statute in Pierce when it would come up two years later.

They knew even before it hit the ninth circuit that this would come before the Supreme Court and Guthrie files this major brief. In in Meyer and it stresses many of the themes which would be picked up in MC Reynold’s opinion. For example Guthrie argues in his brief, the notion of Plato that in the utopia, the state would be the sole repository of parental authority and duty, and the children be surrendered to it.

For upbringing was long ago, surrendered. He makes the classical references, we’re going to see McReynolds pick up, and he says that Plato’s idea is today exemplified by communist Russia. So this idea of the state controlling children is in the 1920s associated with two states, Russia, which we had just gone to war with and with Russia who had just had the communist revolution.

And you can see the influence of that. Guthrie brief. In this passage in Meyer in the, my Opinion McReynolds says, in order to submerge the individual knows the theme of individualism and develop ideal citizens. Sparta assembled the males into barracks and entrust their subsequent education and training to official guardians.

Although such measures have been deliberately approved by men of great genius, their ideas touching the relationship between the individual and the state were wholly different from those on which our institutions rest. And it hardly will be affirmed that any legislature could impose such restrictions upon the people of a state without doing violence to the letter and spirit of the constitution, the desire of the legislature to foster a homogeneous people.

Remember that word, homogeneous. People with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. And he says, experiences in the last war, the war is overhanging. This, the need for Americanization and a homogeneous. He says, I understand it, but it is unconstitutional.

So notice that this theme of common law reserved liberty is given a particular political inflection. It is the liberty necessary for Republican citizenship. What do we mean by Republican citizenship in a republic? The state is answerable to the people, not the people to the state. That’s the essential theme in this passage, and that’s the theme that unites all of substantive.

Due process jurisprudence in the 1920s. And this theme unites Brandeis and McReynolds. It’s interesting, Brandeis joins Meyer versus Nebraska. You think of Brandeis as the enemy of substantive due process. But Brandeis joins this opinion. Brandeis and McReynolds, actually, you might find this shocking, had a lot in common.

They were the two most moralistic justices in the history of the court. Brandeis used to be called Isaiah by Franklin, Eleanor Roosevelt because he was given to preaching sermons, as was McReynolds. Of course, Brandeis was Jewish. McReynolds was a Campbell eye Protestant. And they each had a Republican conception of the Constitution.

They each thought that the citizen should control the state, not the state, the citizen. The difference between these two justices is that McReynolds understood the liberty necessary for Republican citizenship to be determined by the common law. And Brandeis, who had much more experience than McReynolds about contemporary forms of economic power.

Even though McReynolds was an antitrust lawyer Brandeis said, these common law liberties will destroy the individual and thus crush the possibility of democracy, and therefore we have to set aside common law liberties. That was the major difference in their understanding of sources of Liberty Dean.

I’m very reluctant to suggest that the Dean complete his remarks, but unfortunately we want to be sure and have some time for lemme just show you one more thing very well this is Frank Footer notes of a conversation with Brandeis, the right to an education protected by the clear and present danger test.

That’s Meyer, that’s Pierce, and this is the docket book entry. Of Pierce. This is Pierce Butler’s docket book. You’ll notice that the decision was unanimous. And this just records the conversation in the conference about how to decide the case. And he records Taft at the conference, of course, that Chief Justice speaks first.

Taft says the act deprives Parents and Children of Liberty under the 14th Amendment. And he quotes Meyer v, Nebraska and he also quotes Adam V. Tanner. Adam V. Tanner is a McReynolds opinion, striking down employment, the fees for employment agency. So this mixture of liberty and property. He also quotes Harlan’s dissent in Brea College, which fuses education and religion.

And then he records Holmes dissented in Meyer as saying, I have to go along because of the precedent in Meyer. Holmes believed in precedent and so I am going along. That’s one reason they get. A unanimous opinion. I’ll stop it there. Although there’s much more to be said.

And now I call upon Professor Chapman to focus on the state law aspect. Thank you very much. So the court in Pierce held that the Oregon Lawing Private Schools quote, unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of their children. To support the assertion.

The court cited its decision in Meyer holding the state could not prohibit schools from teaching children a foreign language. In both cases, the court cited boilerplate police powers doctrine. The acts had quote, no reasonable relation to some purpose within the competency of the state. But in both cases, the court went beyond the sort of economic liberties that it had previously identified as beyond the state’s reach.

It contrasted the US with Socrates, Sparta, and Communist Russia saying that here we do not standardize our children. In Pierce, it said that quote, 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 recognize and prepare him for additional obligations.

What on earth was the court talking about? Where did it get these ideas about higher obligations and what it might owe to the state, even in a sort of Republican scheme of government as as Professor Post said? How helpful were those ideas in actually deciding the case? I wanna make three points and I’m gonna try to be tidy.

The first is that Meyer and Pierce articulated partially they incorporated into a substantive due process doctrine, a conception of natural rights of parrot. Second though that right was new to the Supreme Court, it was not new in American Constitutionalism, that it was well recognized in state education cases.

And third is any realistic Could have told you at the time. This natural rights social compact framework that was familiar from state cases was flexible, conceptually fraught and deeply under determinate. So although the results in Meyer and Pierce may seem written in stone to us now, they were far from inevitable, even under the legal framework the court was relying on.

So let me begin where Justice McReynolds apparently did not get the parental rights reasoning. Although this is, I didn’t, I wasn’t privy to this this note about the conference. So it’s interesting. He didn’t cite len’s dissenting opinion in the Bria College case. So in, in that decision, Harlan had written the capacity to impart instruction to others is given by the Almighty for benefits and purposes, and its use may not be forbidden or interfered with by government.

Certainly not unless such instruction is in its nature, harmful to the public morals or imperils the public safety. So Harlan said the capacity to teach was a form of property or if not property, it was at least a liberty protected by the 14th Amendment. As we shall see, he was drawing from a pretty deep reservoir of natural rights thinking in state constitutionalism.

But McReynolds Parroted as Professor Post said, much of the Amicus brief filed by the Society of Sisters in Meyer. This Guthrie character is super interesting if you haven’t paid any attention to him before. But he’d been hired to represent the Society of Sisters in Meyer. He won the Pollock case.

He left the Cravath firm in 1907. You didn’t mention this to accept the store’s lectureship at Yale Law School. Cravath had replaced him with a fellow named James Clark McReynolds. The two knew each other fairly well. And then Guthrie joined the Columbia Law School’s faculty. So he warned the court in Meyer not to take any position.

He didn’t take any side in Meyer, but he warned the court not to take a position that would harm his clients in the Pierce case. And that brief probably was the source of these citations to Plato and so forth. Then he argued the Pierce case for it. So he brought, he probably brought the natural rights of parents to the court’s.

Immediate detention probably surfaced them. But the arguments didn’t come from nowhere. One of Guthrie’s leading quotations was from a 1915 decision of the Nebraska Supreme Court declaring that it is the God-given and constitutional right of a parent to have some voice in the bringing up an education of his children.

This was a standard principle from state education cases, but it was only one principle drawn from a pretty complicated form of reasoning that combined interrelated principles from the common law, from state constitutions and background principles of natural rights and social compact fused together.

To make matters more complicated. A lot of those principles were vague, right? And they were sometimes inconsistent with one another. I’ll get back to that in a second. So by the late 19th century, there was well-developed common law of child custody. It differed slightly from state to state. But treatise writers, like a guy named Lewis Heimer could identify some basic principles.

The first one of these might be a little bit surprising to some of us today. By the late 19th century guardianship was widely considered to be a delegation of state power to the guardian who served as a trustee for the child’s welfare and the state’s interest. The principle of guardianship applied with equal force to parents who were considered natural guardians.

As justice story had put it much earlier, parents are guardians, quote, for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of its natural protector for both maintenance and education. In other words, parents were the default guardians of children.

Only because the state presumed the parent’s natural interest in caring for the child would inspire them to promote the child’s welfare. The custody was of course, defeasible by the state as Perin Patri could reassign the guardianship to another. By the late 19th century, libertarians like Christopher Teman could declare with only slight exaggeration.
I think that the trend of the common law was to treat parents as delegates of the state’s authority over children. At the same time, though, the common law recognized that parents have duties and rights in addition to guardianship, including duties and rights to protect and to educate children. So state courts usually turn to constitutional law and to natural rights reasoning to ascertain the source nature and scope of those duties.

And this makes sense. Almost every state, if not every state had a written enumeration of power and responsibility by the state legislature to regulate public education. Okay? So Oregon’s constitution, for instance. Made the governor, the superintendent of public instruction, establish a common school fund and said that quote, the legislative assembly shall provide by law for the establishment of a uniform and general system of common schools.

And by the time of Pierce, it was well settled that such provisions in state constitutions authorized state legislatures to enact compulsory education laws. But the state’s power of education was not absolute. What placed limits on it? Oh, this is where state courts resorted to a combination of written constitutional provisions, natural law and social compact theory.

So consider state against Jackson. This decided by the New Hampshire Supreme Court 1902. Father challenges his conviction of keeping his daughter at home from public schools because he concluded without school board permission that she was feeble under the statute and therefore didn’t have to comply.

The court considered his claim as arising under the first two provisions of the New Hampshire Bill of Rights. So the court acknowledged the legislature has the power to require going to school. But the New Hampshire Bill of Rights says All men hold certain natural, essential and inherent rights among which are the enjoying and defending of life and liberty, and declare the social compact by which men enter into society surrender up some of their natural rights in order to ensure the protection of others.

The court concluded that the father had reserved, had a reserved natural right to protect his daughter’s life and health, that the, and that the right extended to determining in the first place whether she was fit to attend school on the basis of similar reasoning. Courts had also held that although the state could require children to receive an education, parents were entitled to withdraw their children from specific courses at public schools.

Sim similar to some extent to the Mabu decision before the Supreme Court. Now what was entirely untested before the Oregon case though? Was whether states could compel instruction solely in state fund, state run, and state funded schools. So legal historians have variously called this form of constitutional reasoning that states used in education cases pre-modern or classical.

I would just draw a couple of attention to a couple of its features. First it presumed a governmental compact by which people had preserved some unen enumerated natural rights. Second, it determined the existence and scope of the government, compact and natural rights in light of a combination of the common law, written constitutional provisions and statutes enacted pursuant to constitutional powers.

And third, and perhaps most importantly by the late 19th century, and this may be one of the ways in which it is most dis distinguishable from some conceptions of the founding by the late 19th century, American judges and lawyers presume that courts have the authority and duty to use this framework to determine and enforce those rights against legislation.

So this is all pretty familiar from Standard Police power’s reasoning about contract and property rights. But not a lot of commentators have connected it to parental rights of education. And it may be because Meyer and Pierce, in that respect, seemed like a bolt out of the blue in the US reports.

Okay, so I may have some listeners today. Maybe some of our younger members of the audience who are natural rights curious either because of originalism or Traditionalism or Verism or some other is for them. I would offer maybe a word of caution. The parental rights cases, including Myron Pierce, I think illustrate the extent to which the framework was highly under determinant.

To illustrate, consider another compulsory school conviction case very much like the New Hampshire one I mentioned this went out of Indiana 1901. The state Supreme Court noted that quote, the natural rights of the parent to custody and control of his infant child are subordinate to the power of the state and may be restricted and regulated by municipal laws.

End quote. That’s pretty standard natural rights thinking right there. Fruit, few natural rights are inalienable and even inalienable natural rights can be regulated for the common good. When the court turned to education, though its line of thought, took an odd trajectory it said one of the most important natural duties of the parent is his obligation to educate his child.

Okay, so far so good. Then it says, and this duty he owes not to the child only, but to the commonwealth end quote. Under classical natural rights reasoning, this is a bit of contradiction. Natural duties arise at nature. They’re logically, if not chronologically, prior to one’s duties to a commonwealth.

The duties one os to a commonwealth by contrast. Arise, not by nature, but by social compact. So where the compact has resulted in a government they arise by positive law. So here the court is fusing together the sort of duties at nature and duties to the commonwealth. What the India and the court’s reasoning suggests is that parents have surrendered or transferred their natural duty to educate a child along with that duty’s attendant, natural rights to the state by the constitution.

And then the state had redelegated that duty back to parents. By constitutional law. Maybe by common law. The court I’m sorry, by positive law, maybe by common law. The court didn’t say it clearly, but presumably this transfer had been made in the constitution itself when it gave the legislature the power and the duty to regulate education.

So the million dollar question for courts who were trying to suss through this framework was who had the default duty and right to educate children? Was it parents? Or was it the state that then re delegated that and duty to parents? The answer obviously makes a great deal of difference if you’re trying to figure out what the parent’s rights are against the state.

Pierce sidestep this conceptual puzzle, it just declared the parent’s right of private education. The court’s addicted that the parent has a duty to prepare the child for additional obligations. I think it gestures towards another more textually, secure right to conscience and free exercise. But the court I don’t think was interested in, mooring it to the text even if it had been there were non-religious parties in the case.

So it needed to have a rationale that was broader than free exercise. And of course, it hadn’t incorporated it had deliberately decided not to incorporate the first amendment against the states. So the court relied on state constitutional reasoning about natural rights and duties and the social compact to reach a result that was really popular then.

And it’s remained really popular. But a court could have used that same form of reasoning to find for the state. So buyer beware. You may believe the natural rights arguments have a more attractive foundation than mere positivism. But they’re not more determinative, nor are they more individual rights friendly necessarily than contemporary tiers of scrutiny regime.

At any rate, I would say they’re not naturally. So thank you. Thank you.

We have a few minutes before I turn the program over to questions from the floor to communicate among ourselves. What struck me in the legal history was the argument of the attorney general of the state. To incorporate the free exercise clause in the Pierce case. And I’m just curious is there any indication that the Supreme Court gave that any thought at all?

And if it were to have been incorporated, what would life look like in the free exercise? Don’t they? So even in the vocabulary that we’re using incorporation, that is a vocabulary that is birthed in the 1940s, and it’s birthed through the work of Justice Black. Who’s the inheritor of homes.

Because when we lose the language of incorporation, we’re saying the authority is in a different text of which the due process clause is the vehicle for the transmission. One week after Pierce, the court decides gilo. And that is always characterized in the books as the incorporation of First Amendment free expression into the due process clause.
But actually the court did not incorporate it. They understood it as a question of due process, liberty. They were always phrasing it as a 14th amendment, never a First Amendment question. So that even when you ask a question like that, it’s it’s an anachronism. If you had the mindset of the 1920s, you were just thinking what are the factors of liberty, whether it be a natural law or history or common law or whatever source of authority they had.

And they had multiple different ones, was a very fuzzy concept. At the time. The functional issue for us is what are the limitations on the positive law of the state? And you could have a number of different rationales for that, but incorporation wasn’t one of them, interestingly enough. Okay. Any questions?

From I do have a question for the other panelists. If I may. You mentioned you, so Holmes and Sutherland, both Dissent and Meyer they both join in Pierce, and if I remember right, Holmes wasn’t there for the oral arguments in Pierce. And I wonder professor Post and professor Gordon, if either of you have a theory about, especially Sutherland you said Holmes may have joined Pierce just as a matter of precedent.

‘Cause he thought Meyer controlled. What about Sutherland? We have a letter from Sutherland, which he writes one week after the decision comes down and he says he says, and I’m quoting him Now, the court’s decision in Pierce was the only possible one. There was never any division of sentiment on the court from the beginning.

He says that on June 8th, 1925. But a day later, Taft writes one of his Skull and Bones friends from undergraduate days at Yale. He writes this, he said, we had no difficulty after we decided the Nebraska language case. In fact, he bumps into, you might remember this. He bumps into Guthrie at a, in a conference room in the court, and Guthrie’s asking more time for argument.

And Tash says, what do you need more time? This is Meyer all over again. So he writes his friend, we had no difficulty after Meyer. And then he says, I will tell you sometime about how we made the court unanimous. But so as I have found we don’t know what that story is. Yeah, that’s, I wonder if Sutherland, there’s a sense in some of the old, and I don’t know whether this survives the teens hiatus or not of substantive due process, but there’s a sense in the old substantive due process doctrine of a distinction between laws that merely regulate conduct versus laws that prohibit it. And if it’s prohibitory, it’s right out.

If it’s regulatory, maybe it’s okay. And I could imagine settlement in saying the me, the Nebraska law merely regulated when people could learn foreign languages. But this, that, that’s a formalism that is like highly dubious as a useful principle. But I want this looks more like actual prohibition.

Perhaps. Yeah. There’s no trace of that in the Sutherland papers or in his letters or diaries. I suspect he did it because Holmes changed his mind. And also both Sutherland and Holmes were very much inclined to follow precedent. Okay. So here you have a very recent two year precedent.

And that they would buck, that would be an extremely unusual, in fact, one of the very few times Holmes refused to follow precedent is in the following week in Gilo. And you might remember in the Gilo descent, Holmes says, I had my, I dissented in Abrams, but I, even though this case is controlled by Abrams, I refuse to follow precedent on a matter of such great importance.

That’s one week after this in this he didn’t view it as such great importance. Professor Gordon. Any comment on the historical side? I. All right, thank you. Any further interchange? Yes. May I make one moment? Of course. To understand Pierce, one also has to understand what’s happening to public education in the 1920s.

School compulsory school laws are first enacted in the 1850s, but they’re not enforced. They’re not enforced until the 1890s when the the historians of Education called the year, the beginning of the 20th century, the bureaucratic stage of education. And the school officials, the NEA, et cetera, begin to develop methods of accounting for school, compulsory attendance, school reimbursement, which are analogous to the administrative techniques which the the federal government used during World War I.

And in fact, they’re much given to saying things like, and I. Quote, a Stanford education professor who you probably has been lost in history. Edward berley. This is 1909, he says in 1909 each year, the child is becoming to belong more and more to the state and less to the parent. I. And that was more or less standard NEA rhetoric throughout the 1920s. This was the rhetoric that was founding the n the Department of Education in the 1920s. And so the response to bureaucracy that you see in the Pierce opinion that is analogous to the response to the bureaucracy that’s governing the social and economic life of the country.

It’s very similar. And if we were had time to look at the language of Pierce, you would see that McReynolds uses words like standardize. You can’t standardize the kids. And at that very moment that they’re talking about standardizing, Herbert Hoover, who was secretary of commerce at the time, is writing articles, literally celebrating, I’m quoting now the man who has a standard automobile, a standard telephone, a standard bathtub, a standard electric light, and a standard radio.

And he’s celebrating that because of the value of efficiency. I. And effectiveness. And it’s exactly that. Which substantive due process opposes in the political name of having a person control the state rather than the state standardized the person. And that substantive due process right up through Obergefell and Casey and Roberts versus jcs, that’s been the theme of substantive due process since the 1920s.

We have about 15 minutes for comments and questions from the floor. If you do have a question, please identify the particular member of the panel you’d like to ask the question to. Sir. Yes. Thank you very much. So I’m gonna get to speak tomorrow, so I’ll be brief, but I want to hear the response to the total ignoring of the actual history of the 14th Amendment in respect of the emancipation.

I. Drama, the drama of bringing black Americans to full citizenship under the 14th Amendment. At that time, there was a huge amount of discussion of the lack of parental rights, both during slavery and also after emancipation through various statutes in the South by which children were still being taken away from black families.

There’s this language that’s very much like Bingham, very much like that generation in what you quoted former Dean Post in so far as like reference to the declaration, the pursuit of happiness by free men. It always astonishes me like we ignore that there was a class of people who were not free men.

I. We go back to Plato, we go back to Sparta, but we ignore our own history. The court does. Most commentators do, the modern Supreme Court does, right? Left center. So that’s for any of you. Actually, I. Any of you? All right. Who wants to start with professor Gordon or Dean? So three quick points.

First, this focus on the original meaning the original text, this is a modern focus. The court in 1920s couldn’t care less. The second, the court in the 1920s couldn’t care less about integrating African Americans. This is the court that decides gang lum and reaffirms Plessy in 1928. That theory is just not here.

And third, most interestingly, to build on what Professor Gordon was saying earlier, if you look at the Ku Klux Klan’s ballot arguments for this statute, they talk about integrating the races in public education. This it was said we wanna bring all races as the Ku Klux Klan in Oregon in the 1920s together.

So this would’ve been a statute which had been racially integrated. And none of that is mentioned, or any of that is of concern to the court here. Anything further? Yeah, I would only add briefly, the court had decided the Cummings decision, it was one of the only education cases the court had decided up to that point.

This is 18 98, 18 99 that had held that states could not be obliged to provide equal schooling for black students. Because that would be the federal courts imposing financial burdens on the states. And so there it clearly gave, relatively short shrift to any notion that parents and children had a right to equal state education.

So it is and the debris case. Yeah. Thank you. I’ve seen some other hands go, sir. Hi Eric Beck. Oh, sorry. Don’t get in the way of the picture, first, I just, one very quick comment. Comment. There was a cover, Lee High School here in, in Palo Alto. Yeah. And is now cover Lee Community Center a couple miles away from here.

So maybe you can visit there later. The question was, I I noticed in the docket sheet that you didn’t post put up on the screen that religious liberty was mentioned on there. But in quotation marks and I couldn’t quite read the whole thing, up there on the screen. But I was just interested in the sort of subtext to both Meyer and Pierce.

’cause if you look at the Nebraska Supreme Court decision one of the main arguments that the defendant who had been convicted was using was that this was religious instruction. And it was, teaching the Bible in German to, at this Lutheran parochial school and then Pierce against society’s sisters is of course an effort to.

In, in one respect just destroy any Catholic education in the state of Oregon. I just wonder, what have you seen in the documents that you’ve seen or el elsewhere, that there’s that subtext of religious liberty? Obviously this is yeah, 15 years before Cantwell, so it’s not incorporated under that name or some other name of incorporation.

So I just wondered if you could speak to that. It’s quite explicit in the oral arguments. Guthrie is arguing religious liberty very much. And there’s another theme here which we should mention, which is Americanization, I. So you all know about what it means to be a 100% American. Have you heard that phrase?

Oh yeah. That’s invented in the 1920s. It’s invented after World War I. You have to be completely loyal. So there’s two concepts of what it is to be American that’s at war in this case. On the one hand, 100% Americanization means I thoroughly believe in the stars and stripes. I believe in Protestantism.

I believe in the kind of ideological uniformity that the Klan is saying. That you see in the history of the United States that the Klan is setting forward. I worship the framers, blah, blah, blah. That’s one sense of Americanization, 100% Americanism. This statute was part of the One Flag one America campaign of the Ku Klux Klan.

And there’s a second idea of Americanization, which is what this case actually stands for, interestingly enough, by Mc Reynolds, which says, Americanism is of the public private distinction. Americanism is where the self is not controlled by the state. So think about the contrast between Godi and Barnett.

In Godi you force the children to stay to, to have the flag salute for homogenization, which is exactly the word that McReynolds is using. The state cannot homo homogenize the American people because to be American is to be an individual who’s different. So he, this is a case that is in the tradition of Barnett.

This is a case in which the way Jackson says it in Barnett, he says, this is a country in which authority is answerable to public opinion, not public opinion to authority. That’s true for religion and religious liberty, but for the court before the invention of positivism, before the court becomes positivist in the 1940s.

And that’s not the constitution, that’s a jurisprudence before the, they imagine the independence as an undifferentiated area in which the personality is formed and not formed by this text or that arbitrary text of the Constitution, but formed as a real human being under the experience of people living in the country.

That’s the way they would’ve conceptualized it. Yeah, I would just add that it was litigated. It obviously couldn’t form the sole basis of the court’s decision or else it would be leaving out the military academy. But I think it’s interesting that the court relied on the natural, to the extent I relied on the natural right of education, parents educate.
I think classically that would’ve been derivative of a, the sort of the natural right of conscience that was, written into very many state constitutions itself which was a right per to pursue natural duties of religion, which entailed duties to inquire into what God demands and to teach children what God demands and that sort of thing.

The fact that it didn’t feel beholden to rely on right of conscience, but moved to right of of parents generally illustrates the way in which this was not textual. The way they were even reasoning about these things was not moored in a sort of positivistic sense. And it I think this is one thing that in our current political situation makes that form of reasoning a little.

I’m. Wary of putting this too firmly. ’cause I tried to say, I think that lots of problems with that reasoning. But for instance, the way the ma mood decision or case has been litigated, it’s litigated as a free exercise case because of the path of positivism and focus on free exercise. And these are, these happen to be parents who have religious objections.

The court decides that on a free exercise ground, it will not include, it will not extend a right to parents who might have an objection, not on the basis of religion, but some other conscientious ground, unlike the decision in Pierce. So modern conservative thought comes out of Scalia, who comes out of homes.

I think I saw another questioner. Yes. Please feel free to come up and form a line. I think that’s probably the best way to do this. We have about, we have a few more minutes. We can take three questions. Go ahead. This is for any of the panelists and I’m curious if you have any thoughts to. Barbara Woodhouse, who wrote quite a bit about Meyer and Pierce wrote this article titled, who Owns the Child, Meyer and Pierce and Children as Property.

And she downplays a lot of the xenophobia that motivated the relevant organ laws. She upgrades, if you will, some of the you could argue more positive impulses of unity and democracy and opportunity for all children. And also obviously thinks about Meyer and Pur says about property, not about liberty.

So I was curious to know if there’s any sort of responses to her work, professor Gordon, perhaps you might have a thought. Okay. So if I could Barbara Woodhouse, it’s, first of all, a lot of historians confuse the pleading requirements. I. With the substance. So you had to plead property in Pierce because you were a corporation.

But as you saw from the notes, wish we could have had time to look at, read ’em more carefully. But at liberty and property, these are not so distinguishable back then. Second, we wanna go back and read modern divisions into the past. The Ku Klux Klan had a lot of very progressive elements about it, especially in the south, Southern progressives and Ku Klux Klan.

People think of them as as dry prohibitionists. So if you look at the 1924 Democratic Convention, which is tied between Macadoo and Al Smith being wets, we wanna read back and say they’re the progressives. And Macadoo is the Southerners who were racist and they had apartheid In the South, we want to think of them as as the enemy.

Actually, it’s the Smith people who go on who oppose the New Deal and the Macadoo faction are much more associated with progressivism. So it’s extremely complex picture here. You can’t draw any simple lines. I’ll just add that not directly to Woodhouse, but generally about the, this issue of who owns the child is that children are a real problem for political theory and always have been.

And this why it’s in Plato and it’s a pro problem for raws too. It’s so within liberalism there’s, there are divergent strands about exactly, how to best care for children and the role of the parent in that scheme. Next question, professor Post, I’m fascinated by this sort of idea of a more Republican conception of the law and of substantive due process that sort of proceeded our more text-based understanding today.

I’m interested in how the idea of justices and judges as a sort of vehicle or. Expert, I think as you put it in the will of the people played out. And my understanding is that the twenties were a time of great political polarization and great polarization in the way that people were thinking about the world.

How maybe this is the bias of how I was educated from today, but I was always taught that the sort of bill of rights and constitutional rights were a safeguard against the public opinion that drives Republicanism. And these sort of principles of neutrality. How did a country fight over so many big issues react to a law that a system of jurisprudence that was based on this more public opinion driven or republican conception of the law.

So the 1920s is so polarized and the major issue of polarization is. Prohibition, it’s so polarized that 1920 is the one and only time in US history that Congress does not reapportion based on the census, because it would’ve given more power to urban areas, wet areas. So when you talk polarization, that was big time polarization.

And the challenge for the justices during the 1920s was law has to speak to everyone, not just one side of a fight or the other side. So how do you fashion a narrative? That speaks to all sides. And if you go back and look at the jurisprudence of the 1920s, this is the problem to which they are responding.

And basically conservative, legal thought of the kind I described says, we’re speaking for everyone. Holmes, who, as you all know, is a veteran of the Civil War three times wounded in the Civil War, says to the conservative elite bar members of his time. What do you mean customs and traditions? We are the site of struggle and conflict.

We are not the site of unifying customs. So when you say you’re speaking for the customs, you are subject to an ideological myth. He says that explicitly in the path of the law. So therefore we need a different grounding in law. We need, and he invents how we imagine law. The judge is the mouthpiece of the expression of the sovereign, which is found in texts or in very specific documents.

That’s Holmes’ invention to get around this polarization. Brandeis has a different narrative, which is also very powerful today. He invents the idea that the judges speak for democracy. That the Constitution is a document that creates democracy, which is why he joins McReynolds in Meyer and says, the state cannot impair education because education is necessary for democracy.

And that’s a, that, that’s how modern Justices given John Hart Ely. They come right out of Brandeis, and Taft and Sutherland have yet again, a different narrative. They say, what do Americans want? Remember this is 1920s. They want prosperity. So what we need to do, most of all, is protect property rights. And so they fashion this idea that the essence of constitutional law is to protect the kinds of property rights that create prosperity.

And Americans want that much more than they want to have. Whatever their crazy legislatures happened to enact last Sunday, that was their view of how a court could speak to the middle. I was gonna add I read the, I think I read this in some book by a guy named Robert Post, but the decision in Pierce was wildly popular.

So you, you pan the newspapers of the era all over the nation. They were pretty much all in favor of it. And I think one thing that is so fascinating about it is it’s one vestige of that era where almost everyone now agrees that the reasoning was problematic or they have discarded the reasoning, but so many people have, maintained the result.

And it’s been, it was popular then. And it’s popular now because of the result. I think as much as, or more than the reasoning. Okay. Last question. Thank you. This question is probably primarily for Professor Gordon but I would be interested in anyone else’s perspective as well. I was really interested in this wonderful history that you gave and in the way that the Klan and those who are on Pierce side are focused on excluding Catholics from education, in part because of their portrayal of Catholicism as a foreign influence in the United States.

At the same time though, at the Klan, those who are on Pierce side are promoting allegiance to the era of the declaration to early America. And I’m wondering how they dealt with the presence of Catholics in America at that time. With the fact that there are, I believe, three Catholics, signatories of the Declaration of Independence, two from Maryland and one from Massachusetts.

I’m remembering correctly with the fact that Maryland is. Established as established by Catholics as a colony for cohabitation, though there’s an antagonistic history there, even from the earliest moments, is that something they totally ignore in portraying Catholicism as foreign or are they able to, in some manner acknowledge that there is a long and Anglo Catholic presence in the United States?

Professor Gordon? Yeah. No, I don’t think they ever acknowledged that. I’m not a, an expert on the demography, it’s pretty clear that we’re in places where there are a lot of Catholics. You don’t have a lot of clan. And what I would be interested in someone else studying, I’m not gonna do any more of this.

The clan’s propaganda against the Catholics is just literally obscene. It’s ab it’s like perfected with these stories about the horrible sexual things that the priests are doing, that nuns are doing. And it’s, in other words, it’s so wide open for a kind of Freudian analysis of what’s going on.

But it is true that in the classic sense of capital p progressivism, the clan was a progressive. Organization, but it was also, and I think this is probably what speaks most directly to the extent that I can, to your question, is it’s tremendously variable according to location. The Klan was not a highly centralized organization.

There was one supposedly national publication, but there were many small ones. And I, another quite interesting issue that I didn’t have time to go into was their relationship to Greek or Russian Orthodox Christians. But the yeah, anyway, I do not know of any any what you’re asking for is not something I know, have, know about, or know of.

Thank you. Thank you very much. We’ve come to the end of this particular panel. I want to thank Dean Post. I want to thank Professor Chapman. I want to thank Professor Gordon and the audience for a very stimulating morning. Thank you.