David R. Upham (U. of Dallas) has posted Pierce v. Society of Sisters, Natural Law, and the Pope’s Extraordinary — But Undeserved — Praise of the American Republic. The abstract follows.

In his 1929 encyclical, Divini Illius Magistri (On Christian Education), Pope Pius XI paid an extraordinary tribute to the United States, the Supreme Court, and more specifically, the Court’s interpretation of the Fourteenth Amendment in Pierce v. Society of Sisters. In the course of affirming that parents have the primary right and duty to direct their offsprings’ education, he quoted with approval from Justice McReynolds’s opinion in Pierce. Moreover, the Pope praised both the Taft Court for its reliance on natural law, and the whole American Republic for having ordained the natural rights of the family, and the natural law in general, in the Constitution.

This article will explore the significance and validity of this praise. This article concludes that this tribute, while extraordinary, was simply unwarranted. Rather, the Taft Court evinced an increasing indifference, if not hostility, to natural law concepts–an indifference clear in Pierce itself as well as Buck v. Bell and other cases. Moreover, the American Constitution did not ordain familial rights in the manner suggested by Pierce. In sum, Pierce was bad constitutional law, inconsistent with constitutional text and precedent, and made by justices unfriendly to all natural-law jurisprudence, whether Catholic or otherwise. And in the hands of like-minded jurists, the Pierce precedent fostered a series of decisions adverse to both constitutional text and Catholic natural-law teaching.

In the course of the article, several claims are made and defended that may seem unconventional: namely, (1) that the Taft Court tacitly but firmly rejected the Court’s pre-1920 natural-lawjurisprudence, (2) that the Court’s decision in Pierce and Buck v. Bell indicated this rejection, (3) that Meyer v. Nebraska not only was poorly decided, but also did not support the holding in Pierce, (4) that although the Pierce reasoning cannot be squared with the text and historic understanding of the Fourteenth Amendment, the Pierce result could, perhaps, find support in an originalist reading of the Due Process Clause, and (5) that Pierce significantly shaped the Court’s subsequent due-process jurisprudence, including the contraction of due process in Buck v. Bell, the expansion of due process through incorporation of the First Amendment, and the further expansion via the incorporation of certain rights of sexual and reproductive autonomy.