Legal Commentary

... And almost any other case involving Pierce/Meyer rights. The reason, of course, is federalism.

Institutionally complex rights -- including rights to private property, rights to parental control, rights to separation of powers (see Calder v Bull), rights to an equally funded public education, and a bunch of others -- should simply not be federalized absent the most pressing need. This is not because these are unimportant rights. To the contrary, they are among the most important. But centralized definition of institutionally complex rights -- i.e., entitlements to essentially systems of collective governance -- generally is a disaster.

Such rights cannot be protected by a simple federal injunction on some well-defined set of state practices. Instead, these rights are entitlements to complex systems of law: The existence of the right requires comprehensive and detailed regulation, balancing (for instance) the interests of children, relatives, teachers, etc, all of whom have plausible federal entitlements to free speech, free exercise of religion, anti-establishment, and, of course, parental autonomy.

The notion that Article III courts can effectively protect such rights with centralized directives from a committee of nine elderly lawyers is laughable. Far better to leave these issues to the state courts' enforcement of state constitutions, where (a) the affected constituencies are powerful enough to amend the organic law to their liking; (b) the variety of jurisdictions is great enough to accommodate passionate differences of opinion about which rights are "fundamental"; and (c) the jurisdictions are small enough that there can be a constant dialogue between the legislature and court about exactly how to manage complex entitlements. (As an example, consider school finance litigation: love it or hate it, would you really want this issue -- about which the states and experts are deeply perplexed -- federalized?)

The Court acted wisely in San Antonio School District v Rodriguez not attempting to federalize the right to an equally funded public education. They'd do wisely here in refusing to federalize parental rights selectively to use the public school system.