Homeschooling & Constitutional Rights

Update: After some consideration, I felt it necessary to include an additional caveat to this column. While I stand by everything I wrote here, just so no one gets any funny ideas, I think people need to read this as well to keep everything in the right context.



Of the text of the In Re: Rachel L. decision, there are a couple of lines and paragraphs that have been particularly galling to the homeschooling community. The paragraph pointed out by Dana, which I excerpted in my previous post, is one of them. But the other big one is:

The trial court’s reason for declining to order public or private schooling for the children was its belief that parents have a constitutional right to school their children in their own home. However, California courts have held that under provisions in the Education Code, parents do not have a constitutional right to home school their children.

Gabriel Malor at the Ace of Spades--who supports the right to homeschool--probes this point a little further.

Unfortunately, I'm not convinced that there is a constitutional right to homeschool one's children. So far I haven't seen a very convincing argument for it and for that reason I believe the best solution to this issue in California is legislative. On the off chance that someone wants to take up the challenge, here are my questions about a constitutional right to homeschooling:

(1) Who possesses that right, the child or the parents?

(2) Where in the U.S. Constitution (or, if you like, the California Constitution) can that right be found? EDITED: This would be more accurately phrased: "What part of the U.S. Constitution forbids the government from interfering with the right to homeschool?"

(3) If there is a constitutional right to homeschool, why isn't there a constitutional right to gay marriage?

(4) Is there a corollary constitutional right to not educate your child if that is your choice?

I've been pondering this question for a while. I'm not sure I want to tackle these questions directly, because I think they miss a deeper point about liberty.

Incidentally, while I've been contemplating this point and formulating my argument all day, waiting for my opportunity to write it out, the redoubtable Sunniemom went right on over to Ace of Spades and left a comment that stole much of my thunder:

The purpose of The Constitution (big T, big C)is to enumerate the powers of gov't, not the citizenry, and the rest is left up to states. Okey-dokey. But- do we sit around in our jammies waiting for someone to list all of our 'rights' before we get on with our lives, seeing as how none of us have the constitutional right to get in our cars and drive to McDonald's for a QP with cheese?

Are we supposed to believe that families must have the state's permission to direct and determine the education of their children (uhm.. does this count potty training?), or practice their religion, or limit television viewing and computer games, or eat Fruit Loops for breakfast (considering the state does have a vested interest in the health of its citizens)?

BTW- when were judges granted the power to invent laws? Can we get Judge Croskey to do something about menopause and cellulite?

Yeah--what she said.

...

In the strictest sense, Malor is right: neither the US Constitution nor the California Constitution explicitly grant a right to homeschool. I subscribe to the textualist school of thought: the text of the law is a standard. The guys that wrote the law fought and argued over every word, including and and the, to make it say precisely what they wanted it to say--and the judges need to respect that. If the law doesn't say X, then X isn't in there; and when a judge sees X in there where it isn't, that judge is overstepping the bounds of his office and usurping the power of the legislature.

To be a constitutional right, it has to be explicitly listed in the Constitution. That is by definition.

But...

If you'll permit a brief excursion through First Principles, allow me to go back a little further and base an argument on the reasoning in the Declaration of Independence. Note that this is not strictly a legal document; rather, it is a work of political philosophy, giving moral and logical justification for America's defiance of Mother England. Here's a little passage that everyone needs to have memorized:

We hold theſe truths to be ſelf-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among theſe are Life, Liberty and the purſuit of Happineſs. — That to ſecure these rights, Governments are inſtituted among Men, deriving their juſt powers from the conſent of the governed....

(I love the elongaged S. But longtime readers of this blog probably already guessed that, huh?)

The legal/philosophical dilemma faced by the Continental Congress was that their secession was illegal under the laws of Great Britain. On what basis could they justify doing something that was blatantly illegal?

Jefferson sets forth the argument here that the governments themselves are under authority. We have rights--natural rights--that do not come from any government, and cannot be removed by any government. In fact, governments exist for the very purpose of upholding these natural rights. Governments only retain their legitimate right to rule when they meet two conditions:

• They uphold the natural rights of Man, that inhere in us simply by virtue of the fact that we are human; and
• They operate with the consent of the governed.

Note that the Declaration doesn't attempt to nail down a comprehensive list of what these natural rights are; it only gives the very vague terms Life, Liberty, and the Purſuit of Happineſs.

Now as I mentioned, the Declaration isn't intended to be a document of law. Rather, it is something much more fundamental than that: it provides the philosophical foundation upon which the legitimacy of the law rests. The government described in our Constitution only has legitimacy because it passes the philosophical test raised by the Declaration.

So here's the one line takeaway: Government--including that defined by our Constitution--is only legitimate insofar as it protects our natural rights as humans. Jefferson, backed by the unanimous vote of the Continental Congress, said so; that's why we have our country today.

One ramification of this is that our rights exist prior to the Constitution. If the government managed to repeal the First Amendment, we would still have the right to free speech, since it didn't come from the Constitution in the first place. It's one of those unalienable rights that comes from our Creator, and any government that tries to take it away only delegitimizes itself. The Constitution didn't give us our natural rights. Our natural rights are pre-existing. Rather, the Constitution merely recognizes and defends them.

...

This is a good place to talk about enumerated vs. unenumerated rights, and enumerated vs. unenumerated powers. When the Constitution was originally written--before the adoption of the Bill of Rights--the general idea was that the powers of government were to be enumerated, and the rights of the people were to be unenumerated.

This meant that when the Constitution provided a list of powers belonging to Congress, those were intended to be all the powers belonging to Congress. So if something didn't show up in the list under Article I, Section 8, Congress didn't have the power to do it. And as written, this list is actually pretty restrictive.

In contrast to this, the rights of the People were to be unenumerated--that is, no list of rights was originally included in the Constitution. This was not because the people were without rights; rather, it was assumed that the people had the right to do anything that the law didn't specifically forbid. And even if a law tried to forbid it, that law first had to be justified as deriving legitimate authority from one of the Constitutionally enumerated powers; and even then, it couldn't violate one of the natural rights that the drafters of the Declaration asserted existed.

Now a controversy arose almost immediately with the new Constitution. The Anti-Federalists were very concerned about a lack of a Bill of Rights in the Constitution. They argued that unless the Constitution included a Bill of Rights explicitly declaring that we had rights to speech, the press, religions freedom, etc., these rights wouldn't have strong enough protection, and would eventually be devalued and discarded by Government.

The Federalists disagreed with this argument for two basic reasons:

• They believed that popular electoral pressure would be strong enough to keep the elected branches of government under control. The voters themselves would be the defenders of their rights.
• They believed that establishing a Bill of Rights in the Constitution would create an enumeration of rights. That is, people in power might be tempted to say, "Sorry--you're claiming a right that the Constitution doesn't actually grant you." Alternately, they believed that it might weaken the principle of enumerated powers: "Just as you have additional rights that aren't in the Bill of Rights, so too the Congress has additional powers that aren't in Article I Section 8."
  

I think most people are in agreement that the Federalists were wrong on the first of these two arguments. Judging from some of the clowns we've elected over the century, I think it's pretty likely that the Government would have done away with all of our rights by now if they weren't carved in stone.

But the second of these arguments is a bit more substantial. It was substantial enough that two Amendments were added to the Bill of Rights to try to keep the powers enumerated and rights unenumerated. The Ninth Amendment attempts to protect the unenumerated nature of our rights: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And the Tenth Amendment attempts to affirm that the Federal Government's powers remain strictly enumerated: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Sadly, these two Amendments seem to be ignored much of the time. If the Tenth Amendment were taken seriously, I don't think we'd have a Federal Department of Education today (or a bunch of other stuff).

And if the Ninth Amendment were taken seriously, questions like "Is there or isn't there a Constitutional right to homeschool?" would be utterly moot. The Ninth Amendment affirms that the Constitution doesn't list all our unalienable rights, and was never intended to.

...

So the big question isn't so much: Does the Constitution say we can homeschool? The question is rather: Is homeschooling one of those unalienable rights that Jefferson talked about? Does it perhaps fall under the "Liberty" part of "Life, Liberty, and the Purſuit of Happineſs"?

The case here is much stronger. It is pretty well accepted that the right of parents to raise their kids according to their own values, unmolested by the state, is a fundamental human right--excepting, of course, those cases where the parents are demonstrably incapable of caring for the needs of their children. But even here, it's not the parents' job to prove their competence; it's the government's responsibility to prove the opposite before it can intervene.

Note that this unalienable, natural right to raise one's kids is not listed in the Constitution, so it can't properly be called a Constitutional Right. But if the Feds went on to decide that the Commerce Clause (say) authorized them to dictate all aspects of child rearing--and systematically remove children from parents who didn't comply--we would recognize this as an abuse that would delegitimize the government, even if it was otherwise done in full compliance with the Constitution and with the consent of the courts.

What do the courts think of this line of reasoning? I suspect that most of them wouldn't go for it. But frankly--I say this as a free citizen of the United States of America, with full rights of speech and the press--I don't care. ;-)

But there are signs out there that at least some of the courts out have recognized the existence of the natural rights of parents to raise their children. There's been a lot of talk lately in the homeschooling community lately about the case Pierce v. Society of Sisters, because it contains this:

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.

The right to homeschool exists as an integral part of the right of parents to raise their children according to their own wisdom and the dictates of their own conscience. And this right didn't start recently--it didn't even start back in the '70's or '80's. It didn't even start with the Old Order Amish that were mentioned in the currently debated ruling. People have been training their own children in academics, citizenship, and morality since long before this nation was even founded--since the great civilizations of Greece and Rome, and even farther back to the days of Solomon ("Train up a child in the way he should go: and when he is old, he will not depart from it") and Moses ("You shall therefore impress these words of mine on your heart and on your soul; and you shall bind them as a sign on your hand, and they shall be as frontals on your forehead. You shall teach them to your sons, talking of them when you sit in your house and when you walk along the road and when you lie down and when you rise up").

I don't claim to have worked out all the legal ramifications. There are always those hard cases out there (you know, the ones that make bad law). And I do think the states have a legitimate interest in maintaining a well-educated population, and to that end have the authority to promote and regulate education. And there's no question that there may be natural limits to the right to homeschool, as there are for all other rights--not even the right of free speech is absolute, after all.

But all these are just wherefores and whereas's and ipso factos, that merely qualify the underlying truth: we have a right to educate our own children, which is as fundamental as our freedom of religion and our right of free association. And like these other rights, it does not come to us from the Constitution; it exists prior to the Constitution. It derives from the right to raise our own children, which is one of those unalienable rights of the sort that Jefferson talked about when he explained how it was that Britain had forfeit the right to rule us.

I realize this sounds pretty bellicose, but after all--three guys in robes may have just attempted to talk away the unalienable rights of a couple hundred thousand parents.