Why have Section Three at all? Historically, aren’t parental rights inalienable, absolute rights with which the government should never interfere?
Answer from Michael Farris, J.D., LL.M:
The Founding Fathers never argued that inalienable rights were absolute. Freedom of the press was clearly viewed as both inalienable and fundamental by the Founders. Yet, there were laws that were on the books punishing those who used the press to defame other people. Defamation was (and is) punished despite the fact that the freedom of the press was viewed as a God-given liberty described repeatedly as both inalienable and fundamental.
Likewise, parental rights are not absolute.
If we strip away the terminology debates and just think about theories of legally protectable rights, we will eventually conclude that there are essentially three potential levels of rights:
- Absolute rights that may never be invaded by government for any reason whatsoever.
- Very important rights that should not be limited except when someone abuses their rights by extreme use of their liberty.
- Ordinary rights that the government could overcome whenever there was a good reason to do so.
The Founders clearly believed that inalienable rights were not absolute. Consider this section from the Massachusetts Bill of Rights of 1780:
And every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law.
First, it is obvious that equal protection of the laws was denied to Jews and Muslims. Religious freedom did not extend that far. Second, there was the limitation of “demeaning themselves peacefully.” Baptist pastors in Virginia were routinely arrested in the 1770s for disturbing the peace when they preached without obtaining a license from the government. (My book, From Tyndale to Madison, gives an exhaustive history of the development of religious liberty in England and America). This “demeaning themselves peacefully” standard gave the prevailing denomination incredible power to limit the religious practices of dissenters. Moreover, there was the limitation that the other denominations had to be “good subjects of the commonwealth.” That, too, was an open-ended, vague provision that could be used to limit religious liberty.
Fortunately, the Massachusetts position was eventually replaced by a view of true religious liberty for all. But my point is this: Even inalienable rights were, in fact, limited by the Founding Fathers.
I think it is now evident that:
- The Founders did not believe that inalienable rights are absolute.
- Parental rights should not be absolute.
In light of the fact that parental rights cannot and should not be considered an absolute right, the question remains: Have we chosen the correct method of limitation on this right?
We certainly do not want to return to the language of the Massachusetts Bill of Rights of 1780: “Parents should have the right to make all decisions for their children provided that they are ‘demeaning themselves peaceably and [are] good subjects of the commonwealth’.” I guarantee you that such a rule would let the government run roughshod over every parent that had the courage to defy an improper government edict.
Accordingly, we chose the language from Wisconsin v. Yoder, 406 US 205 (1972), to describe the difficult burden the government must meet in order to demonstrate that a parental choice can be limited by the government. There must be evidence—not a mere assertion—that in this particular case the government’s interest is “of the highest order and not otherwise served.” This language was used to hold that the compulsory education law was not important enough to meet this standard in the context of that case. Compulsory education law cannot be described as anything less than an incredibly high priority to the government. Yet, parental rights prevailed over this interest in Yoder.
Some standard has to be articulated because the courts will never find that parental rights are absolute. Realism dictates this path, as does good philosophy. Parents should not have the right to abuse their children. So we either leave it to the courts to invent the exceptions to the rule, or we give them the standard from the very best example we have in Supreme Court history. We have chosen the latter path.