Local View: Guarding our liberties
"... [A]ll men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among those are Life, Liberty and the pursuit of Happiness ..." — the Declaration of Independence.
"... Nor shall any State deprive any person of life, liberty, or property, without due process of law ..." — the 14th Amendment to the Constitution.
"The established doctrine is that this liberty may not be interfered with under the guise of protecting the public interest ..." — Meyer v. State of Nebraska, U.S. Supreme Court decision, 1923.
With America's Independence Day this week, it should be remembered how tenuous the guarantees of personal liberty are as set out in these crucial documents.
Why is a Nebraska case mentioned in the same breath as the Declaration of Independence and the Constitution? Because the decision in Meyer has formed the foundation for many of the liberties we have taken for granted over the past century. The right to an abortion has been taken away. Others are threatened now by the majority sitting on the U.S. Supreme Court.
In 1920, Robert T. Meyer, a teacher at the Evangelical Lutheran Church School in Hamilton County, Nebraska, was arrested for teaching a class in the German language in violation of a state law prohibiting teaching in a foreign language.
The law was challenged in a Nebraska court. The argument against was that the law was "an invasion of his personal liberty" under the Due Process Clause of the 14th Amendment to the U.S. Constitution.
The Nebraska Supreme Court upheld the law and the decision was appealed to the U.S. Supreme Court, which in June 1923 found the Nebraska law unconstitutional. It was the very first time the 14th Amendment had been used to protect personal liberties.
For the majority, Justice James C. McReynolds wrote: "While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
The arguments protecting personal liberty in the 14th Amendment lay dormant for four decades, but Justice William O. Douglas in 1965 used the Meyer decision as a basis for overturning a Connecticut law prohibiting dissemination of birth control information and establishing a right to privacy in the Constitution.
Justice Harry Blackmun cited Meyer in the landmark Roe v. Wade decision giving the right to abortion constitutional status in 1973. He wrote in the majority decision: "... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy does exist under the Constitution." Referring to Meyer, he added that the court had found "at least the roots of that right ... in the concept of liberty guaranteed by the 14th Amendment."
The precedent of Meyer also was used in the majority opinion in Obergefell v. Hodges, establishing the constitutional right of same-sex marriage. Quoting Meyer, Justice Anthony Kennedy wrote, "The right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Constitution."
But two years ago, Justice Samuel Alito, writing for the majority in Dobbs v. Jackson Women's Health Organization, citing "history and tradition," ignored the 100-year precedent of Meyer, ignored the 50-year precedent of Roe, and eliminated the constitutional protection for abortion.
What's next? The so-called "originalists" on the Supreme Court have their eyes on the right to same-sex marriage and even the right to use contraceptives to prevent pregnancy. That's why it's so important Nebraska establishes a state constitutional right to abortion.
So, this Fourth of July, as we celebrate our "liberties," remember not only the Declaration of Independence, but also the 14th Amendment and Meyer v. State of Nebraska. Remember how quickly those liberties can disappear.
Randy Moody is a retired attorney and lobbyist living in Lincoln and near Tucson, Arizona.
