Judge Hand lived during a period often cited as judicially progressive (the late Nineteenth and early Twentieth Century saw the Supreme Court active in reviewing large volumes of state legislation based on an application of “due process” to economic and social issues).  Judge Hand advocated for judicial restraint and leaving law-making to the legislature; professionally, he did not believe in overturning or striking down legislation even if his personal opinion a particular law was negative.  Learned Hand even felt that the Bill of Rights was not to be used by courts to overrule statutory law; thus his arguments that the “due process” clauses of the Fifth and Fourteenth Amendments should not be used by judges to meddle in legislation.

Judge Hand was a strong advocate of the principle of free speech.  His free speech test, most famously found in Masses Publishing Co. v. Patten (1917), was that anything short of directly inciting illegal action should be protected speech.  This view was overturned on appeal and Supreme Court Justice Oliver Wendell Holmes, Jr.’s “clear and present danger” test became the standard for free speech in the June 1919 Schenck v. United States decision.  Perhaps it isn’t suprising to find that Hand is credited as one of three or four judicial theorists who’s arguments seemed to sway Justice Holmes so that when he wrote his famous and ubiquitous “shout[ing] fire in a crowded theater” statement in the November 1919 decision of Abrams v. United States, his dissent modified free speech tests for the last century.

Judge Hand may have been a somewhat forgettable lawyer and a standout as a federal judge but his greatest contribution was to the body of judicial theory; most especially in regards to libertarian interpretation moderated by judicial restraint.

Justice McReynolds delivered the unanimous opinion of the court.

Pierce’s decision reiterates the State’s right to require mandatory education of all children within certain age restrictions2 but upholds parents’ rights to choose the manner of the education as long as those choices fall within certain acceptable guidelines.3  The appeal was brought on “due process” grounds, making it a Fourteenth Amendment case.

I found this case while researching First Amendment cases but upon reading the syllabus and Justice McReynolds’ opinion I was confused as to why it was associated with First Amendment rights until I looked it up in The Oxford Companion to the Supreme Court (Amazon, B&N)

 This case was adjudicated during a time when the bench applied substantive due process to cases on the basis of economic conditions.4  That fact is applicable in this case because the appeal was brought by the state of Oregon against the Society of Sisters of the Holy Names of Jesus and Mary and against Hill Military Academy.  Both appellees obtained restraining orders to stop the state of Oregon from inducing all children to attend local public schools.  Their claims were that the Compulsory Education Act of 1922 was damaging to their separate enterprises and that it would effectively stop any revenues without due process of law.

The use of due process upon grounds of economic issues was most active from late Ninteenth Century through the first quarter of the Twentieth Century.  This trend slowed such that by 1934 (Nebbia v. New York) the court applied a standard of reasonableness whereby it decided to accept that the market price of milk was the type of decision that might be best left to the market and the Legislature.

Pierce is notable because the use of substantive due process as it relates to economic issues has long since fallen out of favor and even though the constitutional basis of the case has been debated, Pierce has never been effectively challenged.  Board of Education v. Allen (1968) claimed that the Pierce decision was based on free exercise of religion which is difficult because Hill Military was a military school rather than a religious one.  Other cases have centered on Justice McReynolds’ use of “… rights guaranteed by the Constitution ….” might more aptly refer to fundamental rights, thus providing a basis for the decision.

1 Links to references for this case; multiple are given in case any one is unavailable:

• Oyez
• FindLaw
• Justia
• Cornell

2 From Justice McReynolds’ opinion:

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

3 From Justice McReynolds’ opinion:

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [p535] under their control; as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State.

 

• Allgeyer v. Louisiana (1897)
• Lochner v. New York (1905)
• Adair v. U.S. (1908)
• Coppage v. Kansas (1915)
• Adkins v. Children’s Hospital (1923)