Freeman

THE CALLING

Judicial Activism and Parental Rights

Principle or expediency?

MARCH 10, 2011 by STEVEN HORWITZ

As the Supreme Court ponders an important case on the constitutional status of parental rights, Alford v. Greene, it’s worth reflecting on how such rights play into the debate over “judicial activism.”  Many have observed that “activist judges” are the ones whose verdicts you don’t like, while judges you agree with are simply following the Constitution.  There is much truth to this observation, and the history of parental rights illustrates it beautifully, especially with respect to conservatives.

Today conservatives more often than so-called liberals are strong defenders of the rights of parents to control the upbringing of their children.  Conservatives are also the most vocal in complaining about “activist judges” who do not stick to the text of the Constitution and who “invent rights” out of thin air, especially on family and privacy issues such as abortion.

Not Mentioned

The historical irony here is that the Constitution nowhere mentions the rights of parents to control the upbringing of their children.  These rights that conservatives correctly think are central to a free society were the product of Supreme Court justices whom under other circumstances they would likely call “activists” who read rights into the Constitution.  The justices did so in a series of cases in the first half of the twentieth century.

The two cases generally considered as establishing constitutional protection for parental rights are Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).  In the first case a Nebraska law prohibited schools from teaching a foreign language to students before eighth grade.  In the second Oregon passed a law requiring all students to attend public schools.  In both cases, the Court found the laws unconstitutional because they infringed on certain basic liberties all citizens have.  In Meyer, Justice James Clark McReynolds wrote:

The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”

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.

And in Pierce he elaborated on the right to “bring up children” in language that libertarians should love:

Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control … The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

In both cases the rights of parents were seen as implicit in the more general concept of liberty as protected by the Fifth and Fourteenth Amendments.  Is this not the same sort of judicial activism that conservatives oppose when engaged in by liberal courts to justify rights of privacy or the right to engage in sodomy? Yet I have never heard a conservative condemn the finding of parental rights in Meyer and Pierce as “judicial activism.”

Right to Marry

It is also worth noting that Meyer mentions the right “to marry” as an additional right that is nowhere enumerated in the Constitution but that is implicit in the concept of liberty protected by those two amendments.  Each of the succeeding cases that has expanded and defended that right, up to and including Loving v. Virginia (1967), which overturned laws against interracial marriage, has rested on the foundation laid by Meyer.  The Lawrence v. Texas decision  (2003), which overturned state laws against sodomy, did also.  And it is likely that a decision on the constitutionality of same-sex marriage would be heavily influenced by Loving and Lawrence, and therefore by Meyer, which was also cited as part of the constitutional support for the right of privacy found in Roe v. Wade.

This poses a dilemma for conservatives who are strong supporters of parental rights: The same “judicial activism” which produced the cases that protect constitutionally unspecified parental rights conservatives like also provides the justification for other unspecified rights that they tend to dislike.

Indeed, the charge of activism seems to be more the product of disliking the outcome than of any real principle of constitutional interpretation.

ABOUT

STEVEN HORWITZ

Steven Horwitz is the Charles A. Dana Professor of Economics at St. Lawrence University and the author of Microfoundations and Macroeconomics: An Austrian Perspective, now in paperback.

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