Thoughts on Meyer v. Nebraska and its connection to Griswold v. Connecticut

Please note that this post is from 2017. Evaluate with care and in light of later events.

In the 1923 case of Meyer v. Nebraska, 262 U.S. 390 (1923), which grew out of the anti-German sentiment of World War I, the Supreme Court “upheld the right of parents to direct the upbringing and education of their children by striking down … a state statute prohibiting the teaching of any modern language other than English in any public or private grammar school.”¹

How does this relate to Griswold v. Connecticut, 381 U.S. 479 (1965), which created a “right to privacy” (at least in terms of marital relations)?

Unenumerated Rights

First, Meyer expressly listed various specific liberties, most unenumerated, protected under the doctrine of “substantive due process” protected by the 5th and 14th Amendments’ guarantees of “liberty” recognized by the Court when it decided the case in 1923:

Without doubt, [liberty] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Meyer at 399 (emphasis added).

Although the “right of the individual to contract” would be overturned later, the other liberties continued to have both precedential and societal value in 1965, when the concurring opinion in Griswold cited from this list as precedent for the protection of “marital privacy.” Griswold at 486-88.

Available Knowledge

Second, Justice Douglas in his majority opinion, cites to Meyer and the First Amendment for the additional proposition that the state may not “contract the spectrum of available knowledge.” Griswold at 482; Meyer at 401. This is obviously relevant to the law at issue in Griswold against providing information on contraception.

Police Power & Scrutiny

Third, although less used after the middle of the twentieth century than the more details levels of scrutiny tests, key to the Meyer decision was, as in Jacobson v. Massachusetts, we the proper application of the state’s “police power”:

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes the proper exercise of police power is not final or conclusive but is subject to supervision by the courts. Meyer at 399-400; Lawton v. Steele, 152 U.S. 133, 137 (1894).

In Griswold, Justice Douglas articulates a similar limitation on the actions by a state — and also, implicitly, connects access to contraception to civil rights law:

[A] law cannot stand in light of the familiar principle, so often applied by this Court that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama, 377 U.S. 288 (1964)

The Home and Fundamental Rights

Douglas, drawing inspiration from the deep-seated connection in American law and society between the home and privacy, adds a rhetorical flourish to make his point:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. Gridwold at 485-86.

Meyer, then, although grounded in the time of Lochner v. New York, 198 U.S. 45 (1905), and the now-discredited notion of “liberty of contract,” and concerned as much with education, access to knowledge, and the rights of teachers as it is with anything like family rights, provides a useful source for both Douglas and other justices in establishing the “right to privacy” as a kind of “fundamental right.”