Note: This is an educational course, not legal advice.
Even in the Lochner era, the Court read "liberty" to include more than contracts. Its family cases survived 1937 and became the base for later rights. Each is usually analyzed with one of the two methods for unenumerated rights.
| Case | The law | Holding |
|---|---|---|
| Meyer v. Nebraska (1923) | Nebraska banned teaching any modern foreign language to children before eighth grade | struck down: liberty includes the right of parents to have children taught and of teachers to teach |
| Pierce v. Society of Sisters (1925) | Oregon required children to attend public schools | struck down: "the child is not the mere creature of the State"; parents may choose private schools |
| Griswold v. Connecticut (1965) | Connecticut banned the use of contraceptives, even by married couples | struck down: a right of marital privacy |
| Moore v. City of East Cleveland (1977) | a city zoning rule allowed only a narrow "family" to share a home, excluding a grandmother living with two grandsons | struck down (plurality): the extended family living together is protected |
| Troxel v. Granville (2000) | a statute let "any person" seek court-ordered visits with a child "at any time" | struck down as applied (plurality): a fit parent's decisions about her children deserve special weight |
Why it works
These cases share a theme: some decisions about family life belong to families, not the state. Meyer and Pierce came during the Lochner era, but later Courts kept them and cited them as personal liberty cases. Griswold showed how judges disagree about the source of such rights, which is why the next topics can be read in more than one way. The Court later applied Griswold to unmarried people (Eisenstadt v. Baird, 1972, on equal protection grounds).
Key idea
Due process protects parents' rights to direct their children's upbringing and education (Meyer, Pierce, Troxel), the extended family living together (Moore) and married couples' use of contraceptives (Griswold), where the majority found a right of privacy in the "penumbras" of several amendments.
Worked example: School choice
A state passes a law requiring every child aged 8 to 16 to attend a public school. A private school sues. Which case?
- The law takes away parents' choice of a private school.
- Pierce v. Society of Sisters (1925) struck down Oregon's nearly identical law, unanimously.
Answer: Pierce v. Society of Sisters; the law violates due process.
Worked example: Where did Griswold find the right?
A student writes: "Griswold rests on the Privacy Clause of the Fourth Amendment." Correct this.
- No clause names a general right of privacy.
- Douglas's opinion found zones of privacy in the penumbras of several amendments (First, Third, Fourth, Fifth, Ninth).
- Concurring justices relied on the Ninth Amendment or on the Due Process Clause.
Answer: There is no Privacy Clause; the majority relied on penumbras of several amendments, and concurrences on the Ninth Amendment or due process.
Common mistake
Thinking Griswold rested on a clause that names privacy. The word "privacy" does not appear in the Constitution. Justice Douglas found "penumbras" of several amendments; concurring justices relied on the Ninth Amendment or on due process. That disagreement about sources is why later cases often say the right lies in the "liberty" of the Due Process Clause.