An expansive power of parents over their own children has been recognized by the U.S. Supreme Court since the 1926 decision in Pierce v. Society of Sisters. There, Oregon had attempted to make education in State schools compulsory; the court unanimously reaffirmed the independence and supremacy of the parent. This was guaranteed, it said, in the “due process” clause of the 14th Amendment. This rather mystical phrase – and similar potent, if obscure, clauses – have since been employed repeatedly to reaffirm the broad parental sovereignty. Even loving grandparents need parental permission to visit little Susie.
So parental authority has, in Pierce and its progeny, a certain protected status. Would it, nonetheless, be prudent and helpful – assuming the argument is plausible – for champions of parental authority to assert its reality as a source of law that exists quite independent of the Constitution, but is recognized and protected by it in the Bill of Rights?
Perhaps so. I will argue the institution of parenthood might be considerably more secure under the 10th Amendment than under the ever malleable “due process.” The court could be grateful for the relative clarity – and judicial restraint – that under the 10th would mark the boundary between the power of mother and the rights of Susie. Equally important, the child herself could claim this precious parental authority as a right of her own.
The primary example of this possibility could emerge in the effort to make parental school choice a reality for all families. The present economic compulsion experienced by modest and low-income parents to accept the free schools of The State as their mentor could well appear a violation of the child’s own right as well as an unjustified intrusion upon the parental authority which today, in practice, is reserved to our higher-income families. And sheer human dignity could come as a bonus for all. Continue Reading →