Friday, March 7, 2008

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.


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.


Dana said...

I agree with you, but as focused as I am on rights and first principles, there is a reason I try to stay away from getting into these court cases which the homeschooling community pulls to defend the right to homeschool.

Pierce Vs. Society of Sisters says this:

...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....

But it also says this:

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

I find it ironic that many parents pull their kids because of their concern for the morality and patriotism of the public school staff, but that is another matter entirely.

Fact is, the court has decided that not only compulsory education but compulsory attendance is a power a state has.

There has always been a tension in these cases between the rights of the parent and the interests of the state. I obviously favor the prior, but as we argue these things, we have to be wary of pulling things out of context. All of the same cases mention the ability of the state to oversee the education system, it just cannot mandate a single system.

Which means our true battle is not in the courts or the legislatures. It is with public opinion, because our "rights" can be voted away on a whim.

Dana said...

I also found this interesting, especially given the source:

(Their purpose is to keep lawyers informed so they can fulfill the State of California's Mandatory Continuing Legal Education requirements. Apparently it is worth some sort of credits. Always interesting to see what outside lawyers have to say about the case and its effects.)

Timothy Power said...


Thanks for stopping by! And I want to express my appreciation for all the good stuff you write about over at Principled Discovery--appreciation that should be well in evidence from all the times I link to you.

You're right of course that our true battle is in the court of public opinion, and it is there that the fate of homeschooling will ultimately be decided. Recourse to the courts or to the legislatures can backfire in a big way if the public thinks we're trying to cram something down their throats.

For the most part, I've been trying (not always successfully) to keep my blog away from the political stuff, and more on the philosophical side of things--in the hopes that what I write will edify those in the homeschooling movement, and perhaps sway a few undecideds. And it's for this reason that I like to delve into the first principles; it's an attempt to shift the battleground on which the battle for home education is being fought. The more that people think about natural rights and of the responsibilities of Government toward a free citizenry, the better off we'll be, I think.

And I also agree with both the states and the courts that the states have an inherent, legitimate interest in promoting and regulating the education of the citizenry. And I agree that it's not always easy to balance the legitimate rights of the parent against the legitimate authority of the state; this has been contentious for a long, long time. I just happen to believe that this balance has shifted enough over time that it is the former, rather than the latter, that needs some serious shoring up at this point.

Again, thanks for dropping by!

Tunya Audain said...

Rights are not freely granted top-down by some government authority.
It is only when people feel inalienable rights in their bones can they assert them proudly and openly. Parents should not be meek and humble as supplicants and petitioners in face of government heavy handedness.
Parents have choice in how their children are to be educated, publicly, privately, or at home. This ruling in California is so feudal it sticks out as an outrage in a democracy.
Furthermore, it is parents’ duty to educate their children. School laws across the free world state that. Only in totalitarian countries is home education not permitted.
The first School Laws in America (1642) underlie the system to this day: “Universal education of youth is essential to the well-being of the State. The obligation to furnish this education rests primarily upon the parents.”
Parent groups should evolve their own Charter of Parent Rights statements and educate their members about what is decent and proper in this day and age. I am providing a link to such a statement, compiled in 1977 in Canada, and which can serve as a good starting point for others.
I was heavily involved in Home Education causes in the 80’s and do know such statements empower parents to confidently do what is right by their children.
Tunya Audain

Jarrod J. Williamson, Ph.D. said...

Tim -- I think this is a very well-written post, but I would like to add a caveat. Often Christians will complain that a few unelected judges will circumvent the will of the people by striking down a law or something or other. (CA Prop. 187 comes to mind.)

However, isn't that a power we want judges to have? You know as well as I that, in a Constitutional Republic it is often the responsibility of the judiciary to (responsibly) protect the rights of a minority against the will of the majority.

Yes, I know the homeschoolers are the minority here. But if the majority decided to pass a law specifically outlawing homeschooling and the judiciary stuck down that law, would we be complaining about 3 men in robes ignoring the will of the people?

(BTW, I am a college friend of your brother, Rick. He turned me onto your blog.)

Timothy Power said...

Jarrod, welcome to my humble blog! Rick told me he'd passed my URL along to you.

You ask, But if the majority decided to pass a law specifically outlawing homeschooling and the judiciary stuck down that law, would we be complaining about 3 men in robes ignoring the will of the people?

Really short answer: No. :-)

Answering that question in full would require a column at least as long as the one you just read. But here's the cliff's notes version.

The Big Flaw in the design of our government is that it is run by humans. Given this Big Flaw, we can expect that sooner or later it's going to mess up. This is pretty much inevitable.

The drafters of the Constitution tried to do something really audacious: they tried to create a society respecting of human liberty, knowing that both the citizenry and the leaders were humans, and therefore flawed.

The specific advantage our system has over other governments, is that it recognizes the Big Flaw (which most governments don't), and it therefore has all kinds of built-in safeguards to mitigate the dumb things the leaders--or the population--do from time to time.

Yes, democracy is the system of government most likely to keep the leaders accountable to the people. But democracy is also a system that allows 51% of the population to short-sheet the other 49%. Democracies aren't always the best defenders of rights.

The system our founders came up with is an attenuated representative democracy, one that contains all kinds of safeguards and tripwires to protect liberties--those of the majority and those of the minority. This is the source of the power judges have to rein in bad laws, for example.

Does it always protect our liberties the way it should? No. This goes back to the Big Flaw I mentioned above.

But note that the Flaw can't be fixed by any systematic design change in our form of government. Perhaps a tweak to the judiciary may have caused us to win this case--but there's no guarantee the same tweak won't cause us to lose other cases down the line. So long as society is run by People, some of the People will make the wrong decisions, and there will be injustice. There are better and worse governments, but no government can fix this.

I think it's appropriate to appeal bad rulings, of which this may be one. But I think I'm with Dana. The real battlefield isn't in politics--the courts, or the legislatures--and the solution is not to be found there. The real battlefield is in public opinion. Ultimately, it is there that our rights will be affirmed or usurped.

Jarrod J. Williamson, Ph.D. said...

(Dang, I hate dealing with dudes smarter, and more verbose, than I am. I feel like a Cesna pilot checking his airspeed with an SR-71 listening overhead.)

So, umm, we agree judges do have this authority within the limits set by law. It is just that you feel it was a bad ruling?

Personally, as a public school teacher, I don't like the ruling myself. If parents want to educate their kids at home and they are doing an okay job, then so be it.

However, it does sound like the ruling was consistent with CA law.

Timothy Power said...

I'm no legal expert, so I fully admit this could be wrong. Here's my take.

In the specific case at hand, I think the court probably got it right on the law. California has a legitimate authority to make sure kids get an education, and they have instituted laws to this effect. The Long family may well not have been in compliance.

But in this particular case, I think the court decision was over-broad, with ramifications far beyond the Long family. It may not be that the court intended to take away the right of homeschooling; but there are plenty of people out there on both sides of the issue who are reading the decision that way.

Homeschooling families have thus far been able to fit themselves into the structures provided by the law--specifically by doing the paperwork to incorporate themselves as unaccredited private schools. This ruling appears to throw a little cold water on that approach with an appeal to the presumed intent of the legislature, even though it had nothing to do with the case in question, and even though the vast majority of homeschoolers are operating within the letter of the law. It will affect us; if nothing else, it's likely to result in more nuisance challenges to us that will have to be resolved in court.

So even if it got the case of the Long family right, it's still a bad ruling.

(And while I may be pretty verbose, I'm not going to claim to be smarter than you. We're just dealing with a topic that's near and dear to my heart, so I've been trying to keep myself informed. I bet there are topics out there where you'd bury me in a debate.)

Sisterlisa said...

Very good article, Thank you for taking the time to write this.

Elisheva Hannah Levin said...

Tim, I really appreciate your efforts to bring us back to the first principles of the founders.

I would agree with you that the problem in this decision is that it casts too wide of a net, not that the state does not have some interest in the welfare of the Long children. It is a case complicated by a long-standing conflict between the family and the state, as well as the family and some of its own children, concerning child abuse. I think this is where we get to the problem of hard cases and bad law.

With respect to the allegations of child abuse, some of them substantiated in the past, it is important for homeschoolers to remember that the Long minor children have rights, too, although their rights are limited due to their minor status. One right they have is that of life and liberty to the extent that they not be assaulted, and that is the real problem with this case.

At the same time, I think it is important for homeschoolers to take an interest in this case, because of the wide net cast by the judiciary. I do think they were concerned about the welfare of the Long minor children, but I also think they erred in how they worded their published opinion. And I believe it does stray into the territory that is more properly given to the legislature.

Finally, of course we want judges to act within the law to protect the rights of citizens--including those the majority would like to remove from the minority. But also as citizens, we have the obligation to consider and turn down the retention of judges who make too many errors, and to protest when our rights are being removed by the judiciary as well.

Again, thanks for the food for thought here.

Jarrod J. Williamson, Ph.D. said...

Tim -- first, if you are anything like your brother, yes you are smarter, and a great deal funnier, than me.

I too agree that the court made an overbroad decision, and homeschoolers will be left with a mess caused by the law of unintended consequences. I tend to think that the CA law is not very good on this topic. It almost sounds like homeschooling manages to fit into an unintended loophole in the law.

However, I just wanted to make it clear that the judiciary does have the authority to overrule the will of the majority in protecting the rights of a minority. It is not the job of a judge to do what the majority want, it is their job to interpret and apply the law. It is a balancing act ... hence the separation of powers.

BTW, for what it is worth, the vast majority of public K12 teachers (and teacher's union representatives) that I know who oppose homeschooling oppose it out of concern for the child's education.

Whether those concerns are unfounded or not is a different issue.

However, unlike how it is presented in the Christian media (who are generally no more reliable than mainstream media), it is not a grand conspiracy to indoctrinate children into socialism, communism, global UN'ism, or some other "ism." It is just that so few of the parents of my students are actually involved in their child's life, much less take responsibility for their child's education, that we teachers are conditioned (by the behavior of the public) to worry about what kind of job they will do in educating their children. Take a look at how they come dressed to school and the music they listen to. If the parents cannot hold their children accountable for their attire, they just might not hold them accountable for their algebra.

In fact, the parents already don't. In 10 years of teaching public high school, I have called home to parents about their child's misbehavior numerous times. Yet I can count on one hand the number of times that that phone call actually made a difference. I now rarely call home. Additionally, out of about 175 students I have every year, I regularly send home "potential failing" notices to about 70 of those students every semester. (I.e., students with a C- or lower.)

Guess how many parent phone calls I get in response to those 70 notices? Maybe 2, in a good year.

I know this may sound strong, but frankly, I don't think people should complain about how our public schools are failing kids until they take a long hard look at what is going on in the home and deal with that first. But what politician is going to risk angering all those parental voters when politicians and parents can scapegoat the teachers instead? There's a wet elephant in the room, but nobody wants to talk about it.

(Sorry for my rants. I'll stop now.)

Tunya Audain said...

As a grandmother of the early home education movement in North America, naturally I was concerned about the recent court ruling in California which basically criminalized about 200,000 home schooling parents lacking teaching credentials. Hopefully, if it is not overturned by the Supreme Court, Governor Schwarzenegger has promised legislative remedy: "Parents should not be penalized for acting in the best interests of their children's education.”

I am very impressed by the extent and depth of feeling and outrage expressed by supporters of home education. But, I am disappointed at the hostility and shallowness of those who are opposed, either out of self-interest (teacher unions) or basic intolerance. (Just Google California home schooling ruling…)

It is because this case even came up in 2008, and because the hostility and threat can be reasserted at any time, that I would like you to read my publication in 1987 which was useful in two ways: 1) to encourage home educators, and 2) to put the education establishment on notice about the legality and imperatives driving this movement. In the article I quote John Holt as saying:

“Today freedom has different enemies. It must be fought for in different ways. It will take very different qualities of mind and heart to save it.”

Published in a prestigious educator magazine, The Canadian School Executive, it carries weight to this day, often quoted.

My history in home education goes back to 1972 when, after being credentialed from a Teachers College, I traveled with my children to Mexico to study under Ivan Illich of deschooling fame.

There I met with John Holt. He knew I had two young children with me, ages 3 and 5, and asked if I would be enrolling them in school soon. I said I might educate them at home.
He thought this was illegal, but I said I found from my readings at Teachers College that the “otherwise” clause in most Education Acts allowed it.
He then commented that at least I would be qualified to do it, having obtained a teaching certificate. Again, I enlightened him with the fact that this was not a requirement.
He then posed the thoughtful but predictable question about socialization, and we chatted about the various community opportunities available and the negative aspects of socialization that parents wanted to avoid.
His parting comment was: “Smart City!”
Using his mailing list which he had used to encourage education reform, he soon embraced home education and in 1975 started a new publication, “Growing Without Schools.
Meanwhile, Dr. Raymond Moore was spreading the word (The Family Report) amongst his mainly Christian audience and paid frequent visits to Vancouver, especially when we held Home Learning Fairs.
You can download the 5 page article: Home Education: the third option to see concerns of 20 years ago reappearing today……

Jarrod J. Williamson, Ph.D. said...

You said ... But, I am disappointed at the hostility and shallowness of those who are opposed, either out of self-interest (teacher unions) or basic intolerance.

While I fundamentally disagree with the position of the CTA in thier opposition to homeschooling, they are not pimarily motivated out of self-interest. Overwhelmingly they honestly believe that it is best for a student to have a credentialled teacher educate them. Not once have I heard them express otherwise.

Again, I disagree with their position, but their motives are not self-interest.

Anonymous said...

As a Christian and a Thomist, I am sympathetic to the homeschooling movement, and plan to homeschool my children some day. Though, I think your post falls into a number of errors specifically on the question of “rights”, textualism, and substantive due process.

First, modern natural rights and the rights theory of the Declaration talk can be traced back to the Enlightenment liberals like Hobbes and Locke whose "natural rights" are more like patinas for power. Christians should be wary of fatuously buying into this sort of rights talk lock stock and barrel. The risk is manifold, but it includes buying into a sort of liberal possessive individualism foreign to the Gospel and classical natural law.

The Enlightenment liberals rebelled against the Aristotelian-Christian synthesis and classical natural law theory. For natural lawyers like Aquinas and classical jurists ius (due or right) corresponds to the classical definition of justice: “render unto each his ius.” There is an issue of justice when one claims he is due something. The classical tradition of natural right holds there to be some specified rights due to the very nature of the things considered. (It should be noted that this tradition is also upheld by Protestant natural lawyers like Richard Hooker and C.S. Lewis).

Ius naturale signifies what is due to each according to natural justice. But, Aquinas rarely ever used the term iura (rights, those things due), and he always understood ius underpinned by a metaphysical framework of a hierarchy of being and a hierarchy of goods (rejected by the modern natural right theories). The natural right of parental authority in rearing their children is strongly affirmed by Aquinas (ST II-II Q 10, A 12). Later, after the Enlightenment liberal project was in full swing, even Edmund Burke (the father of modern conservatism whose Reflections demolished the French Enlightenment sophisters and their pretended Rights of Man theories) affirmed “parents…[have a right] to the nourishment and improvement of their offspring.” Clearly by natural right, parents have authority over their children which, as you rightly point out, is presumed in favor of.

But, there is nothing like the amorphous, under-specified rights to “life, liberty, and the pursuit of happiness” in Aquinas or Burke or Hooker, or the Apostle Paul for that matter. This is all to say that you need not (and perhaps should not) rely on an Enlightenment liberal like Thomas Jefferson to affirm a natural right for parents to educate their children. Moreover, a Christian should be wary of adopting Jeffersonian natural rights as “first principles.” See Robert Kraynak for more on this point. (For the record, in classical natural law, the first principle of practical reason is that good is to be done and evil is to be avoided.)

“Rather, the Constitution merely recognizes and defends them.”

Second, it is questionable to underpin the Constitution with the Declaration principles not only for the foregoing reasons, but because, as you yourself seem to hold, the Framers promulgated a document which should be interpreted according to the “meaning of the words” when enacted (aka, the Scalian school of textualism). To assert the meaning of the words countenanced anything like national enforcement of natural rights is a grave error. Where are natural rights mentioned in the Constitution? How is it the case that it recognizes them and defends them? Isn’t it the case that it recognizes covenanting State governments? You equivocate when you say “[t]he government described in our Constitution only has legitimacy because it passes the philosophical test raised by the Declaration.” Which government? According to dual federalism, the several States were in charge of the common good and protecting natural rights in their respective spheres. Again, “Government--including that defined by our Constitution--is only legitimate insofar as it protects our natural rights as humans.” This is the Lockean position. But, as I have pointed out, the Christian should be wary of so simply buying into the modern natural rights thesis. The theory of legitimacy of the rests legitimacy on a much more stable foundation of the requirements of the common good.

In short, your post fails to answer a key question. Which organ of the Fed, on the textualist reading of the Constitution (which leaves questions of natural rights to the States), is empowered to enforce a natural right?

You cite Pierce, the Court considered a case that concerned parochial schools in Portland, Oregon and elsewhere run by an order of Catholic nuns that would have closed under Oregon’s Compulsory Education Act of 1922. The Court by this time had developed a doctrine that injected substantive meaning into “liberty” in the Due Process Clause of the 14th amendment. Substantive due process by this time had come to embody the “liberty of contract”, which the Court invoked to strike down various State laws, most famously in Lochner v. New York (1905). The Court in Pierce affirmed the “liberty of parents and guardians to direct the upbringing and education of children.” In this way, the Court shifted away from the liberty of contract, and recognized “a form of parental liberty unconnected to economic or religious interests” (O’Scannlain, Diarmuid, First Things, December 2007). Thus, even if only incidentally so, the Court appeared to uphold something like the Thomist natural right of parents to educate their children that even Burke recognized as a “real” right.

But, one cannot escape the fact that a textualist is at great pains to arrive at such decisions of substantive due process. Scalia’s whole project is to dismantle it—even leading him to deny the Constitution empowers him as a judge to interject into State legislative decisions to uphold parental rights (see Troxel v. Granville). So, it seems if you hold to textualism, this difficulty must be answered.

Finally, it should be noted that US Constitutional law has a shoddy track record in applying Pierce as a precedent for anything that should make homeschooling parents or any Christians cheer. In fact, it has been a baneful precedent. Pierce is explicitly relied upon in Griswold v. Connecticut, which formulated an innocuous “right to privacy” to strike down Connecticut’s contraception law. Eventually this right would be stretched to give an individual right to contract infanticide in Roe and later an individual right to sodomy in Lawrence. What it looks like is that the laudable result of Pierce was predicated on a notion of substantive due process that all too easily can be co-opted for an agenda to spread “lifestyle rights.”

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