William & Mary Law Review Volume 33 (1991-1992) Issue 4 Article 2 May 1992 "Who Owns the Child?": Meyer and Pierce and the Child as Property Barbara Bennett Woodhouse Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Family Law Commons Repository Citation Barbara Bennett Woodhouse, "Who Owns the Child?": Meyer and Pierce and the Child as Property, 33 Wm. & Mary L. Rev. 995 (1992), https://scholarship.law.wm.edu/wmlr/vol33/iss4/2 Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr William and Mary Law Review VOLUME 33 SUMMER 1992 NUMBER 4 "WHO OWNS THE CHILD?": MEYER AND PIERCE AND THE CHILD AS PROPERTY BARBARA BENNETT WOODHOUSE* I. THE NATURE OF THE PROJECT ...................................... 996 II. LANGUAGE LAWS, COMMON SCHOOLING, AND THE POLITICS OF PLURALISM .................................................. 1002 A. Language Laws and Common Schooling in HistoricalContext .................................................... 1003 B. Americanization as a National Progressive Reform Movement ..................................................... 1009 C. A Test Case: Metamporphosis from Religious Liberty to ParentalRights ...................................... 1012 * Assistant Professor of Law, University of Pennsylvania Law School. B.S., University of the State of New York, 1980; J.D., Columbia Law School, 1983. I owe a debt to the many librarians and archivists who extended courtesies and assistance to me, expecially archivist Marsha Trimble of the University of Virginia Law Library Special Collections (McReynolds Papers), Philip Oxley of the Columbia Law Library (Guthrie materials), the Philadelphia Public Library, the New York Public Library, and the Manu- script Division of the Library of Congress (Sutherland Papers). Thanks also to Merle Slyhoff, and many others at Biddle Law Library, University of Pennsylvania, for their gracious and resourceful support. My special gratitude goes to family law colleagues and historians who generously reviewed earlier drafts of this work, including Elizabeth Clark, Marvin Lazerson, James Liebman, Bruce Mann, Maeva Marcus, Martha Minow, Richard Pildes, Carl Schneider, Alan Watson, Natalie Wexler, and especially my teachers William Leuchtenburg and Benno Schmidt, Jr., who first inspired my interest. I am grateful also to my colleagues Regina Austin, C. Edwin Baker, Judith Bernstein-Baker, Stephen Burbank, Colin Diver, Frank Goodman, Lani Guinier, John Honnold, Heidi Hurd, Seth Kreimer, Howard Lesnick, Charles Mooney, Stephen Morse, Gerald Neuman, Edward Rock, Michael Schill, Susan Sturm, and Elizabeth Warren for their insightful comments. Thanks, as well, for the able research assistance of Jennifer Giblin, Sean Low, Catherine Miller, Randi Stock, and Samuel Young; and the administrative assistance of Debbie Nearey Walsh. Any errors, of course, are entirely my own. WILLIAM AND MARY LAW REVIEW [Vol. 33:995 III. UNIVERSAL COMMON SCHOOLING AND THE POPULIST LEGACY ...............................................................................1016 A. The Oregon School Law ...........................................1017 B. Populism and the Rhetoric of Class Leveling .....1021 C. Walter M. Pierce: Popo-crat Champion of Public Schools .........................................................................1030 IV. "WHO OWNS THE CHILD?": COMPETING VISIONS OF CHILD, PARENT, AND STATE ...........................................1036 A. The American Family: A Brief History in Tim e ............................................................................1037 B. A Legacy of Patriarchy:Parental Ownership of Children...................................................................... 1041 V. PATRIARCHY MEETS THE NEW LANGUAGE OF CHILDREN'S RIGHTS ..........................................................1050 A. The Language of Children's Rights .......................1051 B. Ownership Rhetoric, Children's Rights, and the Regulation of Child Labor ......................................1059 VI. THREE MEN AND THE CHILD IN MEYER v. NEBRASKA 1068 A. William Dameron Guthrie: Conservative Crusader..................................................................... 1070 B. James C. McReynolds: Unlikely Champion of Toleration and Pluralism....................................... 1080 1. The Oregon School Law Dominates Oral Argument ............................................................1085 2. McReynolds's Opinion ......................................1087 C. Oliver Wendell Holmes, Jr.: "One of the Best Liberals"..................................................................... 1092 D. Meyer's Aftermath ...................................................1098 VII. THE OREGON LAW GOES TO COURT IN PIERCE v. SOCIETY OF SISTERS: A SEQUEL AND ANTICLIMAX ......1100 VIII. EPILOGUE ...........................................................................1106 IX. CONCLUSION .......................................................................1112 A. Child as Property..................................................... 1113 B. The Private vs. the Public Child............................ 1117 I. THE NATURE OF THE PROJECT This is a revisionist history of two liberal icons, Meyer v. Nebraska' and Pierce v. Society of Sisters.2 In these cases, the 1. 262 U.S. 390 (1923). 2. 268 U.S. 510 (1925). 1992] THE CHILD AS PROPERTY Supreme Court of the Lochner era struck down state laws from Western and Midwestern states prohibiting the teaching of the elementary grades in foreign languages and requiring that all elementary students attend public school. We have long revered Meyer and Pierce as expressions of a liberal and libertarian spirit. Today they stand for the values of pluralism, family autonomy, and the right "to heed the music of different drummers." A critical examination of the historical context, the events and personalities that shaped the cases, and the testimony of contem- poraries, suggests this account is incomplete. I will argue that they were animated, as well, by another set of values-a conser- vative attachment to the patriarchal family, to a class-stratified society, and to a parent's private property rights in his children and their labor. Along with protecting religious liberty and intel- lectual freedom, Meyer and Pierce constitutionalized a narrow, tradition-bound vision of the child as essentially private property. This vision continues to distort our family law and national family policy, so that we fail as lawmakers to respect children and fail as a nation to recognize and legitimate all American children as our own. In Meyer, closely followed by Pierce, the Court first recognized parental rights of custody and control and added to the list of substantive due process economic liberties the right "to marry, establish a home, and bring up children."4 We like to think of these as the good personal liberty gold of substantive due process left when the evil dross of economic due process was purged. They are the foundation cases for an entire constitutional theory of family. In spite of the fact that the several lines of precedent they generated cover the most controversial territory of our times,5 the Court seems to accept Meyer and Pierce themselves as pure and uncomplicated, virtual products of an immaculate 3. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW S 15-6, at 1319 (2d ed. 1988). 4. Meyer, 262 U.S. at 399. 5. Ohio v. Akron Center for Reproductive Health, 110 S. Ct. 2972 (1990) (who speaks for a pregnant child?); DeShaney v. Winnebago County, 489 U.S. 189 (1989) (when is state responsible for a child's welfare?); Michael H. v. Gerald D., 491 U.S. 110 (1989) (what makes a father a father?); Bowers v. Hardwick, 478 U.S. 186 (1986) (what defines marriage and family, tradition or affection?); Lehr v. Robertson, 463 U.S. 248 (1983) (what creates legal rights in genetic fathers?); Santosky v. Kramer, 455 U.S. 745 (1982) (when may state sever child/parent relationship?); Parham v. J.R., 442 U.S. 584 (1979) (who speaks for an incar- cerated or institutionalized child?); Zablocki v. Redhail, 434 U.S. 374 (1978) (may state condition marriage on fulfillment of parental obligations?); Roe v. Wade, 410 U.S. 113 (1973) (may state regulate the decision to abort?); Wisconsin v. Yoder, 406 U.S. 205 (1972) (are children a medium for parents' religious expression?). 998 WILLIAM AND MARY LAW REVIEW [Vol. 33:995 conception. Justice Brennan remarked of Meyer and its progeny, "I think I am safe in saying that no one doubts the wisdom or validity of those decisions. '6 For once, no voices spoke in dissent. To take Meyer and Pierce at face value is tempting, because the cases speak so eloquently for themselves. Consider the mar- velous words that Justice McReynolds penned: "The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. '7 Recall McReynolds's stark picture of Plato's Republic, in which children are expropri- ated at birth by the state and "no parent is to know his own child, nor any child his parent."8 How can we disagree when he rejects these ideas as un-American? Why do we accept these cases so uncritically? One reason is that post-War anti-German and anti-Catholic hysteria played such a visible role in their genesis diverting attention from longstand- ing social and political conflicts that predated the school laws and