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The Journal of Contemporary Legal Issues

James G. Dwyer

Abstract

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to give them, power to dictate the lives of children they are raising, even against the state’s own efforts to protect and promote what it views as healthy development of children. That sounds like something today’s conservatives should like, and they do. But the way the Court created that right is directly contrary to the view conservatives generally trumpet regarding the proper role of the judiciary. Part I explains this conservative paradox. Part II shows that the analytical framework for parent-state disputes that Meyer introduced is both deeply problematic, conceptually and normatively, and contrary to classic liberal principles. Part III lays out an alternative framework more consistent with those principles.

Volume

26

Issue

1

Start Page

107

Faculty Editor

Maimon Schwarzschild

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