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The Journal of Contemporary Legal Issues

Abstract

The Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of Sisters left us a mixed legacy, one part blessing and one part curse. Many would agree on this but differ on which part is blessing and which part curse.

In my view the blessing is the doctrine of substantive due process protecting personal liberty. The Court did not use this language in these cases, but it did rule that the states’ attempts to interfere with parent rights in those cases violated the 14th Amendment to the U.S. Constitution, and the Court made it clear that in future cases the state would bear a heavy burden to justify any such attempts. In later cases, the Court looked back to Meyer and Pierce as the foundational law when it created important reproductive freedom and relationship rights—the right to contraception and abortion, the rights to sex and marriage for same-sex couples.

In my view the curse is the doctrine of parent rights, given the Court’s failure to create any comparable rights for children. More on this later, but first a word on legacy.

Volume

26

Issue

1

Start Page

99

Faculty Editor

Maimon Schwarzschild

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