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Hastings Constitutional Law Quarterly

Authors

Jeffrey Shulman

Abstract

This article examines the significance of the United States Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of the Sisters under the backdrop of shifting views on what constitutes appropriate state regulation of education. On its face, the question of how a state may regulate education may not seem so controversial. However, the idea that the state could mandate public education and take children from their parents conflicted with traditional views of family autonomy and parental authority.

Progress would occur with the steady diminution of state authority, but under the guidance of the court. Part I of this article looks at what might be the most formative application of John Millar's stage-theory to family relations. Part II of this article looks at the work of two prominent libertarian legal theorists: the British comparative cultural historian Henry Maine and the British moral philosopher Herbert Spencer. Part III posits two points: first, socialist history-making considered the dissolution of the bourgeois family as a key step toward a stateless state, and second, repudiation of the family was no mere doctrinal abstraction for American legal professionals. Thus, in recognizing the right to parent among those recognized at common law, Meyer and Pierce rewrote history.

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