Carly Pearce’s 29: Written in Stone turns a tumultuous year of her life into a near-perfect divorce album.
Country music carries within it a promise of a kind of idyllic traditionalism, even in its most progressive forms. The genre implicitly promises that there is a place where you will find the one person who completes you and build a quiet life out in the middle of nowhere together. Yet in reality, life keeps getting in the way. The best country lives in the tension between those ideas, between the life you’re supposed to want and the world that gives you so many other options, then yanks some cruelly away.
And sometimes, you just need to scream and cry and pound your fists and maybe fire a shotgun into the air. Enter the “Hey, fuck you, buddy!!” song.
Typically (though not exclusively) recorded by women, the “Hey, fuck you, buddy!!” song involves what happens when some jerk breaks your heart, then runs off to be with someone else. As you watch their truck recede into the distance, you scream, “Hey, fuck you, buddy!!” But that’s about all you can do.
Naturally, many of these songs center on divorce. From sad and lonesome classics like Tammy Wynette’s “D-I-V-O-R-C-E” and Dolly Parton’s “Starting Over Again” to more fiery tracks like Loretta Lynn’s “Rated X” and Kacey Musgraves’s “Breadwinner,” a woman’s definition of herself after she ceases to be a wife is an evergreen theme in country (and popular art in general).
And now you can (and should!) add Carly Pearce’s 2021 album 29: Written in Stone to the list. It’s a whole album of kiss-off anthems, inspired by a marriage that lasted less than a year, and it marks a huge leap forward for one of country music’s most exciting young stars. Hopefully, it will help her cross over to audiences who don’t normally listen to country. Those audiences might well love Pearce’s dry, acerbic take on complete and utter heartbreak.
Pearce married fellow country singer Michael Ray in October 2019, but their marriage was over less than a year later, with Pearce officially filing for divorce in June 2020. The title of 29: Written in Stone, then, refers to the age Pearce was when her marriage both began and dissolved. But it also speaks to her anxiety around her impending 30s and her attempts to find a way forward in music after the death of her longtime producer Busbee in 2019, just weeks before her wedding.
It’s an album that looks backward — to Pearce’s parents’ marriage and to her country music foremothers like Loretta Lynn — and forward, to what Pearce might have learned from her divorce that she will bring to future relationships. It’s appropriately angry in places, appropriately grief-stricken in others, and appropriately relieved in still others. It’s an album written by someone who didn’t expect her relationship to end so quickly, but who’s also willing to admit it’s probably good it ended before she and her ex could have their lives further enmeshed.
The opening track, “Diamondback,” nicely sets up what listeners can expect from the album. Its title evokes the deadly rattlesnake, but the song splits that word into two, as Pearce assures her ex that he can have whatever he wants, but he’s “never gonna get that diamond back.” That song and others on the album have superb “getting drunk at a dive bar with your friends after a bad breakup” energy.
Pearce balances them with plaintive ballads, like the album’s second track, “What He Didn’t Do.” In that song, she seemingly explains to the imagined friends assembled at the dive bar why her marriage ended, not by talking about what her ex did to break her heart but all of the little things he didn’t do that left her feeling let down. And yet even as she demurs when asked to give all the gory details, she assures us, “we both know I could run him out of this town. That’s just dirty laundry; I don’t need to wear the truth.”
It’s easy to draw comparisons between Pearce and Musgraves. Both regularly toss off lyrics filled with evocative imagery, emotional complexity, and winking wordplay. Pearce, for instance, uses the title of her hit “Next Girl” to mean both her ex’s next fling and to warn that new fling, “I know what happens next, girl.”
29: Written in Stone has made the comparisons even more pointed, as Musgraves also released an album about her divorce last year, just one week before Pearce’s album dropped. Musgraves’s star-crossed arrived with a fleet of expectations it couldn’t hope to live up to, and its hard turn away from a pure country song disgruntled many in Musgraves’s fanbase. (I liked the album a lot, actually.)
In short, this album knows that any relationship that ends deserves at least a couple “Hey, fuck you, buddy!!” songs. 29: Written in Stone has more than its fair share for all your friends to scream along to at the bar, but it’s also got a hefty helping of heartbroken wisdom for when last call has arrived and you realize your lover’s not coming back.
29: Written in Stone might speak to those who want a more purely country take on what it means to have the thing you thought would last your whole life disintegrate. Like Musgraves, Pearce is willing to take blame for the ways she let her marriage down, but where Musgraves could overindulge in those ideas, seeming like she had slipped into self-loathing, Pearce is only too happy to throw dirt on the grave her ex dug himself.
29: Written in Stone is available on all major music streaming platforms. Physical editions are also available on CD and vinyl.
Science shows that self-compassion isn’t about letting yourself off the hook — in fact, it’s the opposite.
“Oh, no!” I thought when I took an online test to measure my level of self-compassion and saw my score. “I’m below average!”
Immediately I felt the urge to berate myself for the inadequacy — proving, of course, the test’s point.
The test’s creator, psychologist Kristin Neff, pioneered the scientific study of self-compassion two decades ago. The field has exploded since then, with new research on the topic coming out all the time. It’s not just a hot topic among researchers; it’s also popular with the public.
This year marks 10 years since Neff, together with her colleague Chris Germer, created a course to teach people self-compassion. Well over 100,000 people have gone through the eight-week course, and clinical trials have found very positive effects on mental health conditions like depression and anxiety, as well as on physical health. Notably, those effects persist even a year after the course.
Neff began by developing a model of what self-compassion is. She identified three components: self-kindness, common humanity, and mindfulness.
Self-kindness means you’re warm toward yourself when you suffer or mess up, rather than judging yourself harshly (as I did above). Common humanity means you remind yourself that everyone suffers or messes up sometimes, rather than succumbing to the feeling that you’re the only one going through such hard things. Mindfulness, here, means you’re neither under- nor overidentified with your painful thoughts — you acknowledge them as painful, but you also recognize that they’re just thoughts, not your whole being.
If you’re anything like me, you’re already feeling skeptical about all this. Maybe you’re thinking that you need self-criticism to motivate yourself to improve. Maybe you’re worried that self-compassion would breed self-indulgence, leading you to let yourself off the hook too easily.
Well, it turns out the research dispels these misconceptions. Let’s dig into why self-compassion is not only an effective intervention for alleviating mental distress — something we desperately need — but also an effective way to become a better person, and how it’s something you yourself can achieve.
Common objections to self-compassion — and how the research dispels them
The most common objection — one I had myself — is the concern that self-compassion might rob us of the motivation to improve. If I don’t self-criticize when I make mistakes, will I still feel driven to learn from them?
In 2012, psychologists at the University of California Berkeley conducted a great bit of experimental research to see whether self-compassion and motivation were really at odds.
The guinea pigs were Berkeley students, who were instructed to take an extremely challenging academic exam — so challenging, in fact, that everyone did badly. But the students had been divided into three groups, and each group received a different message after the test.
One group was given a message of self-compassion: “If you had difficulty with the test you just took, you’re not alone. It’s common for students to have difficulty with tests like this.” Another group was given a self-esteem boost: “You must be intelligent if you got into Berkeley!” (Note that self-esteem is not the same as self-compassion, since it focuses on validating strengths rather than accepting that we all have weaknesses.) The last group was not told anything; the researchers’ assumption was that the students, being students at a highly competitive university, would judge themselves harshly for failing a test.
Then the researchers gave all the students a chance to study for as long as they wanted for a new test. The self-compassion group studied the longest, displaying the greatest motivation to improve after an initial failure (and also scoring slightly higher!).
This motivation for improvement extends to the interpersonal realm, too. The same researchers found that more self-compassionate people are more likely to want to apologize and make amends to others when they mess up. They’re more able to acknowledge when they’ve made a mistake because mistakes don’t feel so psychologically damning. That allows them to take more, not less, responsibility for their actions.
“What self-compassion does is actually give you that sense of safety to be able to say, ‘Okay, I blew it. I feel so bad. Well, it’s human. People make mistakes. How can I repair this?’” Neff told me. By contrast, “If you feel shame, it shuts down your ability to learn from your mistakes.”
A quick refresher here: Shame is “I am bad.” Guilt is “I did something bad.” Now, what’s really interesting is that while self-compassionate people are less likely to feel shame, they’re more likely to feel guilt.
In 2016, researchers showed this experimentally by asking students to make a choice: Either do an annoying task yourself or palm it off on someone else. Those who chose to palm it off were then divided into two groups: One did a written self-compassion practice, while a control group just wrote about a random hobby.
When the students were then asked to rate how acceptable it was to palm off the annoying task, those in the control group saw their selfish act as more acceptable, while those in the self-compassion group saw it as less acceptable.
“Our findings demonstrate that higher self-compassionate people endorse harsher moral judgment of themselves and accept their own moral violations less,” the authors wrote.
How to start practicing self-compassion: A crash course
The great thing about self-compassion is that it’s a skill anyone can learn. Although it might be harder for some people, like those who’ve experienced the kind of trauma that breeds a harsh inner critic, anyone can practice self-compassion and build it up over time.
Laura Silberstein-Tirch, director of the Center for Compassion Focused Therapy and the author of a book on the topic, explained how the process works using the example of a young woman she knows. The woman is a new mom who recently started putting her kid in day care. The kid’s distress upon being dropped off led the mom to feel intense shame, thinking, “I’m a bad mother!” She started ruminating about how she should’ve done things differently in life, like pursuing a more lucrative career, so she could afford to put her kid in a better day care or keep the kid home.
How can this new mom begin to practice self-compassion?
Step one is for her to become mindful of what she’s feeling in the present moment — simply to be aware that she’s in pain. She might say something like, “This is hard. It hurts.” Or, “Wow, there’s a lot of suffering here.”
Step two is to understand that this kind of suffering is part of the human condition. It’s part of our common humanity. She might say something like, “It’s not just me. It’s hard for a lot of moms to put their kid in day care.”
Step three is to offer self-kindness. A good way to start is by shifting basic physiology. As mammals, we’re soothed by physical touch. So the new mom might put her hands over her heart, signaling to her body that it can ease out of a threat state.
She can then begin to ask herself: “What would I say or do for a friend who was in the same situation? I wouldn’t berate her the way I’m berating myself. I’d probably tell her she’s trying really hard to be the best mom she can, and the fact that she’s so distressed shows how deeply she cares about her kid. Maybe after day care drop-off I’d take her out to a nice coffeeshop, where she can have a warm drink and take a few minutes to soothe herself before continuing with her day.” Then the mom can try saying and doing that for herself.
“We call that the compassionate U-turn,” psychologist Chris Germer, Neff’s colleague, told me. If people have trouble offering themselves the full compassion they’d offer to a friend, Germer says he asks them, “Would you be willing to consider treating yourself just a little bit as you might treat a friend?”
Silberstein-Tirch told me about another form of troubleshooting she does with clients. When they’re resistant to letting go of self-criticism, she asks them, “What function is that serving for you? If I could wave a magic wand and make it so that you could never beat yourself up about this again, what would be your greatest fear about that?”
Sometimes, people realize their fear is that they might get lazy or let themselves off the hook too easily, in which case it helps to be reminded of the research above. If they keep clinging to self-criticism as a strategy for dealing with these fears, Silberstein-Tirch might ask them, “How’s that working for you?”
People typically acknowledge their current strategy isn’t helping them overall. From there, they might become more willing to try something new.
If you’re still feeling skeptical — whether because you doubt self-compassion will make you a better person or because you doubt it’s something you can tap into — that’s okay. Rather than trying to force yourself to accept it intellectually, you can adopt the attitude of a scientist running an experiment.
“Try some self-compassion in a moment of distress and just see what happens,” Germer says. He’s willing to bet that if you try it, even in small ways, the results will start to convince you it’s a better approach than beating yourself up.
If you’re feeling motivated to learn more, you can pick up a copy of the popular and inexpensive workbook Neff and Germer co-wrote. You can also sign up for the full eight-week self-compassion course, which is run by their nonprofit, the Center for Mindful Self-Compassion.
“That course is the mothership, but we need to have different on-ramps,” Germer says. “The future of self-compassion training is adaptations.”
To that end, researchers have been busy figuring out how to tailor the course to specific populations like teenagers, health care workers, educators, and LGBTQ people; it’s now taught on every continent except Antarctica. If the first 10 years of the course were about proving its benefits, the next 10 years will be about expanding its reach.
The Constitution doesn’t tell us which rights it protects, and now the power to decide that question rests with people like Samuel Alito.
I believe that the Constitution protects a right to abortion.
I want to state that upfront because the rest of this essay will be highly critical of the Supreme Court’s opinion overturning Roe v. Wade, and of the open-ended approach to constitutional interpretation exemplified by that decision. As I will argue below, the right to an abortion should be found within the Constitution’s promise of gender equality — an approach which does far more to limit judicial power than the Roe opinion itself.
Roe, the landmark case that first established a constitutional right to abortion, rested on the idea that judges have a practically unlimited power to find rights within the Constitution that aren’t mentioned anywhere within it. The 1973 decision found the right to abortion within a broader “right of privacy,” which itself was found within “the 14th Amendment’s concept of personal liberty and restrictions upon state action.”
The legal name for this kind of constitutional analysis is “substantive due process.” It refers to the theory that certain unenumerated rights — rights that are never explicitly mentioned in the Constitution — are nonetheless implicit in a passage of the 14th Amendment providing that no one shall be denied “liberty” without “due process of law.”
Substantive due process is best known now as the bedrock of many of the most celebrated progressive Supreme Court victories in the last several decades. In addition to Roe, current doctrine holds that rights closely tied to the family — including the right to marry whoever you choose, the right to sexual autonomy, and the right to guide your own children’s upbringing — are among the unenumerated rights protected by the 14th Amendment.
Indeed, when the Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization in June, Justice Clarence Thomas argued in a concurring opinion that all of these rights must fall along with the right to an abortion.
But the Court only started to use substantive due process to advance equality and other progressive values fairly recently. There’s also a much darker history underlying doctrines like substantive due process.
Not long after the 14th Amendment was ratified, ex-Confederates, including a disgraced former Supreme Court justice, tried to twist it into a shield protecting white supremacy — and they very nearly succeeded. Several decades later, substantive due process became a tool of plutocrats, and the Court routinely wielded it to strike down pro-labor legislation.
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Now, the power to read new constitutional rights into our founding document is held by conservative Republicans like Justice Samuel Alito — the same justice who relied on a centuries-old treatise written by a judge who sentenced two “witches” to death in his opinion overruling Roe. It is a terrible mistake to trust this man with that kind of power.
Abandoning substantive due process, moreover, should not mean sacrificing hard-fought victories for reproductive choice or marriage equality. A sounder strategy is to root these rights in constitutional provisions that offer more specific protections. The Constitution’s guarantee that no one may be denied “the equal protection of the laws,” for example, is capacious enough to protect both.
It’s time, in other words, to put substantive due process to bed.
The right to an abortion can exist without an unenumerated “right to privacy”
The Constitution is clearly supposed to protect some rights that aren’t mentioned within it — this is apparent from the Ninth Amendment, which provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
But the Constitution’s text also provides few clues about what these unenumerated rights might be. And judges have struggled for more than a century to come up with a coherent theory of which such rights are protected by the Constitution. American judges haven’t even settled on a persuasive theory about which provision of the Constitution permits them to find unenumerated rights to be implicit in the document.
One way to square this circle is to allow judges — and ultimately the Supreme Court — to determine which unenumerated rights should enjoy constitutional protection. That’s a fine solution if you are comfortable giving this power to whoever sits on the Court, including the specific justices who currently do.
But if you are concerned that Alito and his fellow conservative justices do not have your best interests at heart, then it makes more sense to limit the Court’s power — and that means that our rights must be grounded in constitutional text that places some limits on judicial discretion.
The right to reproductive freedom — including the right to abortion — should be found within the Constitution’s guarantee that no one shall be denied “the equal protection of the laws.”
As the late Justice Ruth Bader Ginsburg wrote shortly before she joined the Supreme Court, the question of whether women will be able to “participate as men’s full partners in the nation’s social, political, and economic life” hinges upon their “reproductive autonomy.” Gender equality, at least at a systemic level, is not possible in a society where women’s bodies can be seized by the state for nine months at a time.
Roe, however, said surprisingly little about equality, instead claiming that the right to an abortion is implicit in a right to privacy, which is itself implicit in the due process clause of the Constitution.
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The question of whether to root abortion rights in gender equality or in a broader right to privacy may seem academic, but the stakes are high. The judiciary’s power to guarantee equal protection is potent but limited. It merely allows judges to equalize rights, providing to a disadvantaged group what the government has already provided to a more advantaged group. In extreme cases, equal protection may also invalidate policies, like the “inherently unequal” segregated schools rejected by Brown v. Board of Education, that systemically relegate a disadvantaged group to an inferior position in society.
Substantive due process and similar doctrines, by contrast, permit the courts to find any right they choose within the Constitution, including “rights” that do serious harm to already disadvantaged groups. As Justice Hugo Black, a liberal Franklin Roosevelt appointee, wrote in 1970, the methods his Court uses to find unenumerated rights within the Constitution are “an arrogation of unlimited authority by the judiciary.”
And much of the history of substantive due process — and the Supreme Court’s use of it — backs Black up.
The battle lines on unenumerated rights were drawn very soon after the Civil War
The idea that important political rights flow from a provision of the Constitution that only guarantees “due process” is quite odd. And it’s especially odd because the 14th Amendment also states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This language provides a much stronger hook to hang substantive rights upon than the due process clause.
The story of why this privileges or immunities clause plays almost no role in modern constitutional law, however, is instructive. It is a story about how easily bad actors can manipulate vague constitutional language that guarantees undefined rights.
And it starts with John Archibald Campbell, one of the great villains of the Reconstruction Era. A former Supreme Court justice and West Point classmate of Robert E. Lee and Jefferson Davis, Campbell quit the Court at the beginning of the Civil War and eventually become the Confederacy’s assistant secretary of war. After the war, he lived in New Orleans, where he complained in an 1871 letter to his daughter that Louisiana’s Reconstruction government put “Africans in place all about us.”
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Campbell read the 14th Amendment and saw an opportunity to neutralize laws enacted by Black legislators. In one case, he argued that a law requiring racially integrated theater seating was unconstitutional because the right to run a segregated business was one of the unnamed “privileges or immunities” protected by the new amendment.
The apotheosis of Campbell’s racist litigation strategy, however, was the Slaughter-House Cases (1873), which split the justices 5-4 between two wildly divergent theories of unenumerated rights, both of which would remain relevant for decades.
Around the time of the Civil War, New Orleans was the unhealthiest city in the nation. One in 12 residents died every year, often from outbreaks of cholera or yellow fever. One of the most significant contributors to this public health crisis was the city’s slaughterhouses, whose waste littered the streets and polluted with rotting offal the Mississippi River that supplied New Orleans’s drinking water.
To deal with this problem, the state’s Reconstruction legislature shut down all of New Orleans’s slaughterhouses and replaced them with a single grand slaughterhouse that would be open to all butchers — and that would sit downriver of the intake pipes that supplied the city with water.
Campbell objected to this law largely because the legislature that enacted it included 35 Black lawmakers. But he primarily adopted proto-libertarian rhetoric in order to challenge the law in court. Claiming he stood for “Freedom. Free action, free enterprise [and] free competition,” Campbell told the Supreme Court that the Reconstruction legislature’s slaughterhouse law must fall.
A majority of the Court saw through Campbell’s effort to achieve racist ends by laissez-faire means, and upheld the slaughterhouse law. The purpose of the 14th Amendment, Justice Samuel Miller wrote for the majority, is to ensure “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.” It wasn’t to impose small-government conservatism on the states at the very moment when Black Americans first began to exercise legislative power.
But while Miller’s decision was a victory for public health — and at least a temporary defeat for Campbell’s white supremacist project — it achieved this outcome by reading the privileges or immunities clause so narrowly as to render it virtually meaningless.
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Though Miller did concede that the 14th Amendment protected some very limited rights, such as the right “to come to the seat of government to assert any claim he may have upon that government” or the right to “use the navigable waters of the United States,” the thrust of his opinion was that judges should be very reluctant to find rights within the 14th Amendment, lest the courts be transformed into “a perpetual censor upon all legislation of the States.”
In effect, Slaughter-House neutralized much of the 14th Amendment. Miller essentially decided it was better to eliminate the possibility that the privileges or immunities clause would be used for good, than to risk allowing someone like Campbell to use it for evil. As Justice Stephen Field complained in dissent, the Court’s decision transformed the privileges or immunities clause into “vain and idle enactment, which accomplished nothing.”
Field’s vision for the 14th Amendment, however, was as inconsistent with its antiracist purpose as Campbell’s. If Campbell embraced a kind of proto-libertarianism as a cynical ploy to undermine Black lawmakers, Field did so earnestly and enthusiastically. He believed that the Constitution provides expansive, unenumerated rights to capital. And his vision would eventually prevail during the first third of the 20th century.
Substantive due process as a tool of plutocrats
Field could be the patron saint of modern-day figures like Paul Ryan and Neil Gorsuch, who seek to shrink the government until it can be drowned in a bathtub. After Congress enacted a 2 percent income tax that applied only to the wealthiest one-thousandth of Americans, Field wrote an apocalyptic opinion claiming that “the present assault upon capital is but the beginning,” and that it would lead to a “war of the poor against the rich.”
His dissent in Slaughter-House, meanwhile, foreshadowed an age when the Supreme Court would routinely strike down pro-labor legislation on the dubious theory that workers have a right to enter into oppressive labor contracts. Quoting from the economic philosopher Adam Smith, Field wrote that preventing a poor man “from employing this strength and dexterity in what manner he thinks proper” is a “manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.”
This theory of liberty, and particularly the idea that workers and employers both benefit from a system where workers may enter into oppressive labor contracts, won majority support on the Supreme Court shortly after Field’s death in 1899.
The case that most exemplified this era was Lochner v. New York (1905). Today, Lochner is widely viewed as one of the worst decisions in the Court’s history — even Alito denounced it as “discredited” in his Dobbs opinion overruling Roe. Lochner struck down a New York law providing that bakery workers, who were typically paid by the day or week and thus gained nothing from longer hours, would work a maximum 10-hour work day and a 60-hour work week.
Lochner claimed that the law “interferes with the right of contract between the employer and employees,” embracing the laissez-faire approach to labor policy that Field advocated in Slaughter-House.
The Court eventually abandoned Lochner, and its so-called “right to contract,” in 1937. But Lochner was still one of the most consequential decisions of its time. Among other things, the Court relied on Lochner’s so-called “right to contract” to strike down laws protecting the right to unionize and laws providing for a minimum wage.
By the early 20th century, two distinct concepts of unenumerated rights had gained purchase on the Supreme Court. One, which was first articulated by Field and later embraced by a majority of the justices in Lochner, saw the Court as a bulwark against too-aggressive legislatures. Under this theory, the Court had at least some duty to step in when lawmakers enacted policies that offended not only the text of the Constitution, but also the justices’ personal sense of how a capitalist society should function.
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The other approach, which resembled Justice Miller’s position in Slaughter-House, called for judges to defer to lawmakers’ policy decisions. In a now-celebrated dissent, Justice Oliver Wendell Holmes articulated this approach: “A Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire.”
Or, as Holmes put it in a more colorful moment, “if my fellow citizens want to go to hell, I will help them.” Under this approach, it simply was not the job of judges to find new rights in the Constitution that could thwart the actions of democratically elected lawmakers.
Two more aspects of the Court’s Lochner-era jurisprudence are worth noting. One is that Lochner and its progeny cited the due process clause, not the privileges or immunities clause, as the source of the right to contract. This shift allowed the Court to recognize unenumerated rights without having to explicitly overrule Slaughter-House — even though that meant tying substantive rights to a provision that speaks only of “process.”
The other is that, while Lochner and similarly plutocratic decisions loom large over this era, there was another line of early 20th-century substantive due process cases involving the rights of parents. And these decisions would eventually blossom into cases like Roe v. Wade.
The right to family autonomy
In 1919, Nebraska forbade school teachers from teaching “any subject to any person in any language than the English language” before the student passed the eighth grade. It was a transparently nativist law, enacted, in the words of Nebraska’s highest court, because “the Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land.”
Three years later, Oregon required most parents to send their kids to public and not parochial schools. This law was almost certainly motivated by anti-Catholic sentiment.
The Court struck both laws down in a pair of substantive due process decisions, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), both of which emphasized that parents have a right — though not an unlimited one — to direct the upbringing of their children.
As the Court ruled in Meyer, individuals have a right “to marry, establish a home and bring up children.” A parent has a “natural duty” to “give his children education suitable to their station in life.” And that duty brings with it a right to employ a teacher “to instruct their children” in subjects they wish those children to learn.
Beginning in 1937, when a majority of the Supreme Court agreed to scrap Lochner and stop sabotaging much of President Roosevelt’s New Deal, the Court began a purge of Lochner-like decisions that thwarted progressive economic regulation. Indeed, the Lochner decision was so offensive to liberals that many left-leaning judges and justices formed an identity around opposing it. As Justice Black said in 1967, the entire reason “why I came on the Court” was because “I was against using due process to force the views of judges on the country.”
But Meyer and Pierce, which did not threaten progressive economic programs such as the New Deal, survived this purge — despite Black’s belief that any decision reading unenumerated rights into the due process clause was illegitimate. And eventually a majority of the justices decided once again to drink from the forbidden chalice of substantive due process.
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Justice William Douglas’s opinion in Griswold v. Connecticut (1965), which built upon Meyer and Pierce to hold that the Constitution permits married couples to use contraception, reads like the work of a sorcerer’s apprentice who knows that he is toying with black magic and ineptly tries to hide it.
“We are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment,” Douglas writes in Griswold, as well as a suggestion that “Lochner v. State of New York should be our guide.” But Douglas insisted that his Court would “decline that invitation.”
Instead, Griswold relied on the truly risible argument that married couples’ right to contraception could be found within the “penumbras” and “emanations” of various constitutional amendments that “create zones of privacy.” This argument, whose only virtue is that it allowed the Court to find an unenumerated right within the Constitution without using the cursed words “substantive due process,” is rarely mentioned in the Court’s later decisions, except maybe to mock it.
Yet, while Griswold fumbled around for a way to protect contraceptive access without adopting the substantive due process framework that animated Lochner, it also shares the Court’s revulsion in Meyer and Pierce at the idea that the government would intrude too deeply into intimate decisions that should be made by families. “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” Douglas asked. “The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”
By the time Roe was handed down eight years later, the Court was less coy about the fact that it was relying on substantive due process — Roe situated the right to an abortion in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” More significantly, the Roe opinion explicitly placed various decisions protecting the right to decide when and how to form a family under the umbrella of a “right to privacy.”
This right, according to Roe, included “activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.”
When you read the Court’s unenumerated rights cases in conjunction (or, at least, the cases that do not rest on the discredited reasoning in Lochner), a very clear and consistent ideology emerges. Every American has a right to marry a person of their choosing (1967’s Loving v. Virginia, 2015’s Obergefell v. Hodges); to form and dissolve intimate bonds with whomever they choose (Lawrence v. Texas in 2003); to have, or not to have, children at a time of their choosing (Griswold, 1972’s Eisenstadt v. Baird, Roe); and to raise those children as they desire, subject to laws prohibiting abuse, truancy, and the like (Meyer, Pierce).
Under the pre-Dobbs understanding of substantive due process, there must be firm safeguards against the government interfering too much in these deeply personal decisions. And yet, if you find this vision of family autonomy compelling — and I personally find it quite compelling — I urge you to think for a moment about what the current Court, with its 6-3 Republican supermajority, might do with the power to wall off certain family-centered decisions from government policymakers.
What does substantive due process really accomplish?
The question that looms over every single one of the Court’s unenumerated rights decisions is whether we can trust an unelected Supreme Court to decide which rights are protected by the Constitution.
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Heritage Art/Heritage Images via Getty Images
Imagine what sort of “rights” John Archibald Campbell might have found within the 14th Amendment’s vague language if he’d remained on the Court rather than committing treason in defense of slavery. Imagine what Stephen Field might have done if he’d had the votes to impose his laissez-faire vision on the country during his lifetime. Imagine, for that matter, what someone like Samuel Alito might do now that he has the power to invent new constitutional “rights.”
Think, for example, of the many efforts by social conservatives to remove books they disagree with from public school curriculums and libraries. Or similar efforts to force transgender students to use bathrooms that do not align with their gender identity.
Historically, cases like Meyer and Pierce have not been understood to allow conservative parents to impose their will on public school curriculums and policies. But someone like Alito could certainly read them that way. If parents have a right to decide their children’s’ upbringing, what prevents a socially conservative Court from holding that they have a right to send their kids to a public school that doesn’t have trans-inclusive bathrooms?
Leading anti-LGBTQ groups have already spent years thinking about how to use substantive due process to achieve their agenda, sometimes even embracing rhetoric lifted straight out of Griswold or Roe.
Before we sacrifice our constitutionally protected right to privacy at the altar of gender identity politics… https://t.co/wDMwaI94Br
— Heritage Foundation (@Heritage) June 29, 2016
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Charles Dharapak/AP