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The Journal of Contemporary Legal Issues

Abstract

The Education Trilogy cases were important milestones in American constitutional history. They 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 has described external forces that may have motivated this shift—revulsion at the Ku Klux Klan, backlash against Progressive statism, and the Justices’ need to cultivate 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 prevent the education cases from becoming another battle in the war between the more Progressive and more conservative Justices. This is turn allowed future liberal Justices to rely on Meyer and Pierce in protecting fundamental rights under the Fourteenth Amendment’s Due Process Clause while still, like Brandeis, expressing contempt for Lochner.

None of this discussion has relied on high constitutional theory. But while high constitutional theory surely plays a role in Supreme Court decision-making, the Justices are human, and like everyone else feel the pull of both historical circumstances and personal experiences.

Volume

26

Issue

1

Start Page

41

Faculty Editor

Maimon Schwarszchild

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