As a response to the ideological state capture of schools and hospitals, conservatives have responded with calls for parental rights. School districts peddle racialist, white-shaming theories in their curriculum. In response, parents want to know what is being taught, so they ask for transparency through what many states call a “parental bill of rights.” Schools offer comprehensive sex education, and parents want to be informed of the content and then given the right to “opt out” or “opt in” to such classes. Schools encourage students to identify as other than their so-called “assigned gender” at birth and to do so against the parents’ wishes. In this case, conservatives view the state as usurping the role of a parent, and the sanctity of parental rights demands that the state back off. The same kind of pushback can be seen in the campaign for school choice (versus the state monopoly on public monies for education), for independence in homeschooling, for the freedom to hand down religious traditions, and for prudential latitude regarding children’s vaccinations.
Conservatives have become wedded to the idea of a formal and kind-of neutral concept of parental rights as a bulwark against the consolidation of state power. There is something reasonable, even deeply revealing about the claim of “parental rights.” Parents do have duties and responsibilities over their children that a legitimate state must not interfere with. There are biblical mandates. There are legal protections, as in the landmark Supreme Court cases Pierce v. Society of Sisters and Meyer vs. Nebraska. In Meyer, Nebraska had outlawed teaching foreign languages to children before the eighth grade, while the Oregon statute at issue in Pierce required Oregon parents to send their children from age 8–16 to public schools. The Meyer court declared the Nebraska law to be an unconstitutional infringement on individual liberty and parental power. Protected liberty, the court held, was more than
merely liberty of bodily restraint, but also the right of the individual to contract, or 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 these privileges long recognized in common law as essential to the orderly pursuit of happiness by free men.[1]
Pierce follows Meyer in protecting parental rights. During an era where John Dewey and others promoted state-directed, Progressive education and where there was movement toward compromising religious, especially Catholic, private education (as the Oregon law itself attests to),[2]
the Court again defended parental rights.
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 a 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.
The court in Pierce links a right “of parents and guardians to direct the upbringing and education of children under their control” with a duty to use that freedom well. The fact that the Society of Sisters, an order of Catholic nuns who ran a private school, provided education that was “not inherently harmful” and even “useful and meritorious” made it easier for the unanimous Court to defer to parental rights in this case.[3]
Laws also recognize, for the most part, that those who give birth to children take them home, no questions asked. We do not even think about the automatic character of the fact that those who give birth to the child have authority over the child: we do not randomly distribute children to interested parents. We just assume, for the most part, that those who give birth to children are going to be legally and morally responsible for their upbringing. We do not demand parental licensing. The state does not create this bond and this responsibility. It recognizes it. Call it what you want, the language of parental rights is a good-enough way of conceptualizing parental authority, duty, and responsibility in our time and place.
Parental rights are strongest when they are connected to deep truths about human nature.
The action in our liberal framework of parental rights centers, first, on how to protect parental rights, and second, on how to conceptualize the harms that always limit claims of rights. Parents have rights, everyone will admit, but rights are always limited by claims of abuse or neglect; increasingly, abuse and neglect are defined not by judges or sensible people but by those claiming to be professionals—like teachers, guidance counselors, health instructors, administrators, doctors in the thrall of liberationist ideologies or minority stress syndrome; complicating the matter further, surrogacy has eroded the assumption that those who have children are legally and morally responsible for them.
In some crowds, I reckon, being a liberal is likely to earn scorn, and being a non-liberal or post-liberal will be the default position. And there is good reason for being non-liberal and to criticize the centrality of “parental rights.” What intellectual will defend the value-neutral idea of parental rights, when everyone knows that there is no neutral ground; that harm is a value-laden term; that neglect is a value-laden term; that our totalitarian ideological situation is hijacking precisely these terms. I, too, think parental rights are not enough in our time or in any time. I, too, want to break free from the rights-harm framing imposed on us by John Stuart Mill and the American legal tradition of the past seventy years.
However, I don’t intend to bury the idea of parental rights. Rather, I want to deepen our appreciation of parental rights with a full recognition that parental rights, as we currently understand them, are not enough. Two cheers for Parental Rights.
The problem with parental rights currently understood is easily summarized. All laws appeal to some understanding of what society expects or what society considers to be good, advantageous, or just. Society is never a closed system. Laws and frameworks point to a social vision and social visions themselves are subject to a higher law. Healthy societies, with more or less common and decent ideas of the good, advantageous, and just, can protect parental rights in a formal way, and parents will be guided by predominant opinions about their duties and the aim of their authority and point their children in the right direction. Our laws protect against harm and neglect, but these terms are understood in light of our regime. There are no Golden Tablets of harm and neglect. Thus, the protection of rights is never simply neutral or abstract. It is always with respect to a particular regime.
Conservatives seeking to avoid the substance of parental rights or who believe their own press have a tough time when the shoe is on the other foot. Parents who want to give their kids puberty blockers at age six, so that their children can choose their gender later in life, could be seen to be exercising parental rights as the concept is used by most conservative advocates. A father who wants to hand his pornography business on to his son and, to start him early, rears him with a firehose of pornographic content so that he learns the “family business,” is, in a manner of speaking, handing down his ways to his son, exercising parental rights as many conservatives understand them. Obviously, what parents do with their rights matters and the substance of what society approves matters too. We cannot blindly endorse parental rights any more than we can blindly endorse the argument that parental rights are exercised consistently with the interests of our
society.
Parental rights are strongest when they are connected to deep truths about human nature. If human nature is up for grabs, if the definition of marriage is loosened, if technology circumvents natural pregnancy, if gender is fluid, if sexual norms are subverted, then the idea of “parental rights” is not going to preserve the traditional privileges and immunities of the family or protect children from predation. The regime informing parental rights makes all the difference.
What is good about parental rights? What truths do the language and idea suggest? Is there a better way of conveying them?
First, the political community’s authority in family matters is not exercised directly. A political community may “control” the family in a sense, but its “control” is indirect. There is a core of family life—marriage, sex, and fathering/mothering—that escapes the political community’s grasp. No legitimate political community orders a man to marry a particular woman or to marry at all. No legitimate political community orders a husband and wife to have children now or not to have children or to have only a certain number of children. No political community can order men and women to have sex at a particular time. No political community can, upon the birth of a child, simply seize him and give the child to another, without some involvement or permission from the parent. Or give the child its name, except in exceedingly unusual circumstances. Children are never thought to be simply products of the state—either in reproduction or in education. They are products of families working within the political community. In this sense, parental rights and marital rights generally enjoy a traditional immunity from state intrusion because neither are created by the political community. The political community only acknowledges them.
This understanding of indirection depends for its subsistence on a particular understanding of family duties and of the limited nature of political community. It didn’t obtain in Soviet Russia, and it is on the wane in the formerly liberal democracies of the West.
This points to a second way in which the ideas within the conceptual framework of parental rights should guide our thinking. There is an ancient battle between the family on one hand and the political community and the church on the other. They battle for the allegiance of citizens, believers, and family members, though, perhaps, in a perfectly ordered commonwealth such a battle would hardly be waged. People love their families, their political communities, and often their church. Each demands loyalty. Each demands one’s time. It is manifestly hard to imagine in our circumstances, but families can be too strong and undermine a commitment to genuine public justice through their favoritism and tribalism. One word makes it clear that families themselves are not self-sufficient: incest. Or to take another: cousin marriage. Sometimes families can be too strong and therefore parental rights, in those cases, can upset the necessary functions of churches and governments.
That, of course, is hardly our problem. The political community can obviously be a threat to the integrity of the family, as when the Soviet Union celebrated the despicable child, Pavlik Morozov, who, according to Soviet legend, squealed on his parents for being hoarders. It is not too difficult to imagine our political community celebrating children who informed on their parents for their carbon dioxide emissions or for harboring racist views or for violating other sacred cows of our regime.
Parental rights, in a manner of speaking, are a recognition that a political community has intruded upon the trust and loyalty that family life requires—on the integrity of the family. Our courts acknowledge this in things like spousal privilege. A loud celebration of parental rights comes from families defending their turf, telling the state, “That’s none of your business,” defending the loyalty and trust of their members. This is itself a good. When a school counselor is “transing” your kid, a parent is likely to say, “Who do you think you are!” more than, “The substance of your proposal is offensive.” There are passions involved in sustaining the battle between family and political community. A vigorous, jealous exercise of parental rights expresses the desire to protect and support one’s own, even at great personal risk. This can be excessive and irrational (as people involved in youth sports can tell you), but parental blinders are indispensable. None love their children only as much as they deserve it. Liberalism qualifies or erodes primal loyalties, but they persist within liberalism under the generic rubric of parental rights.
An attack on familial integrity is underway. Parents are encouraged to defer to regime-aligned experts. The State promotes a shrinking vision of what parental duties and obligations are. Parents who get on board with this new vision need not worry because their “parent rights” will be respected, but only because “experts” say so. Between seeing children as primarily the products of the state and accepting publicly funded and administered schooling in the 1850s and 1920s, to usurping parental and churchly functions around sex education in the 1970s, to today’s transgendered phase, experts in schools and the medical profession are telling parents that they know better. Once the line between political community and family is moved, it provides a justification for the next move, and the next. The experts define “harm” or “neglect” and family integrity wanes. And parents start to believe in “the experts.” The more parents believe in the experts, the more their “parental rights” will be respected, but I would submit that this is purely nominal. Those asserting “parental rights” against our increasingly totalitarian state should always do so knowing that their defense of their own and their defense of family integrity is also most importantly a defense of a particular way of organizing family life.
Generally, in our revolution today, parents are taught to have an ever-shrinking sense of what their duties and rights are, and they are more willing to have the state take over the family’s functions, to see the family itself as something created by the state instead of having integrity of its own. Remember that feminists have renamed “families” as state-created “intimate care-giving units.”
Parents who disagree with the experts will appeal to “parental rights.” To do so is a rational appeal to one’s own. In this sense, we should give two cheers for real “parental rights” or “family rights.” First, for forming without state action, and second, for minding its own integrity against erosion.
What the parental rights framework does not get is the answer to the fundamental question of what is the purpose or end of parenting or the end of the family or the end of education. Parental rights as a concept is focused a lot on means and not a lot on ends. This ends up implicating a lot, indeed, all of the important questions. Political communities limit the power of parents, and that is good. We may agree in principle that parents should not harm or abuse their children, but our understandings of these terms vary within society and by society. Is spanking abuse? Is free-range parenting neglect? Is Mountain Dew “mouth abuse” and neglect? It depends on what we are trying to accomplish. And evaluating social goals is the duty of political philosophy. Political communities should answer these questions in part through what effects they will have on family integrity. Family integrity is always compromised as the state and family battle for the allegiance and love of people, but the compromising should not undermine the glue that holds it together and should point beyond itself to genuine virtues.
On a formal level, my political position is that we should bend against the prevailing winds. In times of excessive clannishness, more political community power is necessary. When the political community intrudes, more “parental rights” or family integrity should be the emphasis. This is my rule of thumb. States must respect the atmosphere of trust and mutual responsibility at the heart of family life, and families should be passionate in defense of it. A state that pushes ideologies that dissolve natural ties and familial unity must be met with a position that defends natural ties and sees the family as the basic unit of society.
The substantive level is where the rubber meets the road, however. In the battle against transgenderism, for instance, formal rights are always interpreted according to subterranean assumptions about human autonomy—and that is really what is at stake. The predominant technological ideology pushed by experts today is that we are not familial creatures and that we are free from our people, our bodies, our families, and Our Creator. The only good response is a philosophy and theology of human limits and how those limits—our birth, our need for love, and our deaths—point toward a life well lived. That is where the action really is, and a defense of “parental rights” connected to duties, a robust conception of the good life, and social thriving would elicit three cheers.
[1] Meyer v. Nebraska 262 U.S. 390 at 399 and 401.
[2] See “Father Blakely States the Issue: Unsigned Editorial in The New Republic,” in American Progressivism, eds. Ronald J. Pestritto and William Atto (Lanham, MD: Lexington Books, 2008), 136–37: “Twentieth-century democracy believes that the community has certain positive ends to achieve, and if they are to be achieved the community must control the education of the young. . . It insists that the plasticity of the child shall not be artificially and prematurely hardened into a philosophy of life, but that experimental naturalistic aptitudes shall constitute the true education.” Also Paula Abrams, Cross Purposes: Pierce v. Society of Sisters and the Struggle Over Compulsory Public Education (Ann Arbor, MI: The University of Michigan Press, 2009), 40–41, 95–96, 167–68, 191 and 227, who shows that nativists such as the Ku Klux Klan and Progressives promoted compulsory public education in the Oregon context and throughout the nation.
[3] Pierce v. Society of Sisters 268 U.S. 510 (1925) at 534–35 (emphasis supplied).
