A Supreme Court Anniversary

Adam Shelton · June 1, 2020

The Supreme Court’s decision in Pierce v. Society of Sisters is a foundational case for the educational choice movement, but it is so much more than just that.

Today is the 95th anniversary of the Supreme Court’s decision in Pierce v. Society of Sisters. In Pierce, the Supreme Court recognized that parents have a constitutional right to control the upbringing and education of their own children. This was one of the first cases to recognize such a right, and the first to do so in such an explicit manner.

Many herald this decision as a foundational case for the educational choice movement. And rightly so! In Pierce the Court explained: “[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.” And more directly, the Court explained “[t]he 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.”

This case is critical for the educational choice movement as it recognizes that parents, not the state, have the highest duty and responsibility to ensure the education of their children. This case also established the precedent that a state cannot prohibit all private schooling. But this case has multiple other aspects that make it more than just a case about parental rights.

This case, which many originalists celebrate, also has two secondary issues that have divided originalists in recent years: unenumerated rights and universal injunctions.

Many originalists cheer the Pierce decision, but the right recognized is not explicitly mentioned in the Constitution.

For many years, there has been an ongoing debate in originalist circles over whether the Constitution protects unenumerated rights. That is, whether the Constitution only protects rights specifically listed in the Constitution.

This debate in originalist circles is exemplified through the Supreme Court’s decision in Troxel v. Granville. In this case about grandparents’ visitation rights, the Court’s two foremost originalists split over unenumerated rights. Justice Thomas, no friend of following precedent for precedent’s sake, concurred in the Court’s decision and explained that Pierce was controlling. On the other hand, Justice Scalia’s dissent explained that parental rights are found nowhere in the Constitution and, while such rights might be constitutionalized through the Ninth Amendment, such rights were judicially unenforceable.

Whether the Constitution protects unenumerated rights is a subject over which legal scholars have spilled thousands of words. But the Ninth Amendment is clear and the Supreme Court has consistently held that rights not explicitly mentioned still receive judicially enforceable constitutional protection.

When considering the question, people would do well to keep in mind that the drafters wrote the Constitution without a bill of enumerated rights in mind. The drafters of the Constitution, and its major advocates, did not originally think that a Bill of Rights would be necessary. They believed that the enumerated powers and limitations placed on the federal government were enough to prevent the government from violating individual rights. They also worried that it was impossible to list out all the rights that warranted protection and that listing rights would leave the unlisted unprotected.

To quell this concern, the drafters of the Bill of Rights included the Ninth Amendment. This Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is clear; broad, but clear.

Unfortunately, the broadness has led to extensive arguments over the actual meaning of the Ninth Amendment. Some argue that it means that unenumerated rights deserve equal protection with enumerated rights. Others argue that it must be read in conjunction with the Tenth Amendment and is really about federalism and democracy. And still others argue that we cannot possibly know what it means so it is judicially unenforceable.

Justice Scalia did not believe unenumerated rights were judicially enforceable and so he dismissed decisions like Pierce in his Troxel dissent. But there are others who celebrate Pierce while arguing against unenumerated rights. So as we rightly celebrate Pierce v. Society of Sisters today, we should also remember that this decision hinges on an unenumerated right. But unenumerated rights are not the only secondary aspect of this decision worth noting.

The lower court issued a universal injunction here, but there is currently a large debate in originalist circles about the propriety of such injunctions.

The two private schools that challenged Oregon’s prohibition on private education requested an injunction to prevent Oregon from enforcing the prohibition. The court acquiesced, but instead of granting an injunction which protected only the two schools the court enjoined Oregon from enforcing the prohibition against any private school.

That is, the Court issued a statewide universal injunction, the same thing in a legal sense as a nationwide universal injunction. Each are simply court orders which prevent the government from enforcing a law or policy against parties and nonparties alike. These types of injunctions, especially the nationwide variety, have become controversial in recent years because of their entanglement with controversial policies of both the Obama and Trump Administrations.

Many originalists, especially originalists on the right, claim that such injunctions conflict with the Constitution and are an invention of the 1950s. This case disputes the narrative that such injunctions are a new invention of the courts which were not seen before the middle of the last century. But it is more than that. It shows that courts have long believed it was within their power to ensure that a state did not go on enforcing an unconstitutional law against those unable to challenge the law.

Those originalists who celebrate this decision should also be aware of this aspect of it. This is especially true of originalists who advocate against universal injunctions.

So let’s celebrate Pierce v. Society of Sisters.  Let’s celebrate the huge win it was for the educational choice movement. But it is so much more than just an educational choice decision. And we should remember, and possibly even celebrate, those aspects as well.


Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.

To read more about out universal injunctions (both nationwide and statewide) be sure to check out our four part series on the issue: First, Second, Third, Fourth.