Pope Pius XI’s Extraordinary — But Undeserved — Praise of the American Supreme Court

Abstract

In his 1929 encyclical, Divini Illius Magistri (On Christian Education), Pope Pius XI paid an extraordinary tribute to the United States, the Supreme Court, and more specifically, the Court’s interpretation of the Fourteenth Amendment in Pierce v. Society of Sisters. In the course of affirming that parents have the primary right and duty to direct their offspring’s education, he quoted with approval from Justice McReynolds’s opinion in Pierce. Moreover, the Pope praised both the Taft Court for its reliance on natural law, and the whole American Republic for having ordained the natural rights of the family, and the natural law in general, in the Constitution.

This article will explore the significance and validity of this praise. This article concludes that this tribute, while extraordinary, was simply unwarranted. Rather, the Taft Court evinced an increasing indifference, if not hostility, to natural law concepts — an indifference clear in Pierce itself, Buck v. Bell, and other cases.

In the course of the article, several claims are made and defended that may seem unconventional: namely, (1) that the Taft Court tacitly but firmly rejected the Court's prior natural-law jurisprudence, (2) that the Court's decision in Pierce and Buck v. Bell indicated this rejection, and (3) that Pierce significantly shaped the Court's subsequent due-process jurisprudence, including the contraction of due process in Buck v. Bell, and the expansion of due process through incorporation of certain rights of sexual and reproductive autonomy.

The article begins and concludes by noting the parallels between the Pierce case and the current litigation over the so-called “HHS Mandate” and the enduring tensions between the natural-law teaching of the Catholic Church and the jurisprudence of the American judiciary.