wordsworth

Between the two World Wars, the Court in Meyer found a contradiction in state law that undermined Nebraska’s rationale for its ban on instruction in German before age twelve. The contradiction was that the ban contained an exception – instruction could be given in Latin, Greek, and Hebrew.

The Court concluded its opinion by saying –

As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child’s health by limiting his mental activities.

Meyer is often criticized as an instance of judicial activism, as a case in which the Court re-wrote the Constitution and declared a new "unenumerated" right not found in its text – a right to teach, a right to direct the education of one’s child, etc. However, the Court’s ratio decidendi did not require manufacturing such a right. It required only finding a contradiction in the laws of the state that removed all justification for the challenged statute.

The Court did something similar in Roe v. Wade when it found that Texas could not deny a woman the assistance of a physician in abortion if it permitted her – as it did – to do the abortion herself.