The movement claim that Nebbia v. New York's broad liberty definition is the Supreme Court's majority holding, not a dissent, is unsupported
The movement proposition
Treatise #2’s definitional claim D1 (liberty) is supported by a citation cascade including Nebbia v. New York, 291 U.S. 502, 547 (1934). Beers cites Nebbia for the proposition that “liberty,” as defined by the Supreme Court, includes economic liberty, family life, worship, and “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” The cited language is presented as authoritative Supreme Court doctrine on what liberty means — and as part of Beers’s broader argument that liberty operates as the foundational standard (“The Great Principle”) against which government action is to be measured.
The authority
Nebbia v. New York, 291 U.S. 502 (1934) is a 5-4 Supreme Court decision. Justice Owen Roberts wrote the majority opinion upholding New York’s milk-price-control statute against a substantive-due-process challenge under the Fourteenth Amendment. The majority — Roberts, Hughes, C.J., Brandeis, Stone, and Cardozo — held that price regulation of the milk industry was a permissible exercise of state police power and not an unconstitutional deprivation of liberty or property. The decision is widely treated as an important step in the Court’s retreat from Lochner-era economic-liberty doctrine, continuing the trajectory that culminated in West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
Justice McReynolds dissented, joined by Van Devanter, Sutherland, and Butler — the “Four Horsemen” who would resist the New Deal’s expansion of regulatory authority for several more years. McReynolds’s dissent argued that the milk-price-control statute violated due-process liberty. The dissent appears at pages 539-559 of the U.S. Reports.
The specific language Beers cites at page 547 reads:
“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, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”
The passage is in McReynolds’s dissent. McReynolds himself is quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923), which had used the same language in striking down a Nebraska statute prohibiting foreign-language instruction in elementary schools.
What this means for Beers’s argument
Three distinct problems with the citation.
The attribution is wrong on its face. The language is from McReynolds’s dissent, not Roberts’s majority. Beers attributes it as authoritative Supreme Court doctrine. A dissent is not authoritative doctrine; it is a documentation of disagreement with the majority. Meyer v. Nebraska, the underlying source of the language, was itself a majority holding — but Beers cites Nebbia, not Meyer, and the Nebbia citation surfaces the dissent.
The case held the opposite of what Beers’s framing implies. Nebbia upheld New York’s regulation of milk prices against a liberty challenge. It is part of the Court’s contraction of Lochner-era economic liberty, not its expansion. Citing Nebbia as authority for an expansive-liberty reading inverts what the case actually decided.
The doctrinal content of the quoted language is not fabricated. The Meyer liberty definition has carried forward — partly — in modern substantive-due-process doctrine. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 576 U.S. 644 (2015), all draw on the Meyer tradition. So the substantive content of the liberty definition is real. It is just not what Nebbia held; it is what Meyer held (and what subsequent substantive-due-process cases have developed).
Counter-authority
The trajectory of the Court’s substantive-due-process doctrine after Nebbia is well-documented. West Coast Hotel v. Parrish (1937) abandoned Lochner-era economic-liberty review. United States v. Carolene Products Co., 304 U.S. 144 (1938), set out the Court’s new posture — deferential review of economic regulation, heightened review reserved for specific categories. The post-1937 Court has cited Meyer’s liberty language in non-economic substantive-due-process cases (the privacy and family-autonomy cases) but has consistently not applied it to invalidate economic regulation. Beers’s framing imports a Meyer-via-McReynolds-dissent reading into a doctrinal context (regulatory liberty) that the modern Court has explicitly closed.
Verdict
Unsupported. The Beers citation of Nebbia v. New York for an expansive liberty definition fails on the face of the case. The quoted language is from Justice McReynolds’s dissent, not Justice Roberts’s majority opinion. The majority upheld the regulation Beers’s framework would want struck down. The substantive liberty content is real — it traces to Meyer v. Nebraska (1923) and has carried into modern substantive-due-process doctrine in specific (non-economic) contexts — but the citation is to the wrong opinion in the wrong case for the work Beers asks it to do. A reader checking the cite at the cited page will find McReynolds’s dissent, not the majority’s holding, and will see immediately that Nebbia does not support what Beers attributes to it.
The legitimate substantive-due-process literature that engages the Meyer liberty tradition lives in the actual cases — Pierce, Griswold, Lawrence, Obergefell — and in the constitutional scholarship that engages them (Lawrence Tribe, Cass Sunstein, Akhil Amar, others). A reader interested in the Meyer liberty tradition can engage it through those sources; the Nebbia citation is a misattribution that doesn’t reach the tradition Beers wants to invoke.
Sources cited
- Liberty — Byron Beers