I. Biblical Law
Legal protection for parental rights and family educational prerogatives dates back at least to the time of the Biblical Old Testament. Quite apart from any theological implications of the Bible, Biblical tradition has exerted a profound impact upon our modern world's secular political and legal systems.
In most ancient cultures, including Egypt under the Pharaohs, a nation's ruler possessed virtually unlimited sovereign power. Slavery, infanticide, confinement, torture, and ethnic cleansing were assumed to be legitimate practices. E.g. Genesis 37:28; 39; Exodus 1:8-14, 16-18, 22; 2:11-12; 3:7; 5; 6:5, 9. As a result, all children were considered "creatures of the state," who owed their primary loyalty to the ruler, absorbed sovereign dogma, and existed to fulfill the whims of the ruler.
This totalitarian tradition was evidently passed on by the various ancient nations, including Babylonia, Babylon, Assyria, Persia, Crete, Greece, and the Roman Empire. E.g. Daniel 1:1-5; Matthew 2:3, 4, 16. The approach was also celebrated in Plato's Republic, which advocated infanticide, eugenics, compulsory education, and a government of Philosopher-Kings.
The Mosaic Law and its supporting Old Testament was the first influential legal code to seriously promote the limitation of sovereign power and the formal recognition of parental prerogative. The Old Testament inferred that rulers had an obligation to comply with external, immutable principles, including basic civil rights. The Bible set forth a code of family law, forbade rape, outlawed incest, and prohibited the killing of non-criminal civilians. E.g. Deuteronomy 5:17; 20:17; 22:25-27. In some portions of its narrative, the Old Testament also cast a distasteful light upon slavery, unjustified confinement, and ethnic cleansing. Exodus 5; Deuteronomy 5:6; Daniel 1:1-8; 3:9-22; 6:6-17.
Most radical of all for its time, Biblical Law decreed that a child's first duty was to honor his or her own parents, and that parents should exercise control over the upbringing and education of their own children. Deuteronomy 4:10; 5:16; 6:7; 1 Kings 3:16-28; Proverbs 1:8; 22:6; 19:15; Malachi 4:6. These and other factors later made Moses a symbolic icon for American abolitionists.
Key figures of the New Testament perpetuated many aspects of Old Testament culture beyond the confines of Palestine. Many early Christians continued to observe Old Testament customs concerning family life and education, particularly as such related to the precepts mentioned above. E.g. Ephesians 6:4.
II. Early English Common Law
Biblical ideas were introduced to England by the Roman Empire during the 4th century, and again in 597 A.D., when St. Augustine converted the Kingdom of Kent. By 650 A.D. most Anglo-Saxons had been baptized under the direction of Patrick, a Celtic missionary. The Norman conquest of England in 1066 A.D. reinforced England’s acceptance of the Bible.
English common law emerged shortly thereafter, during the reign of King Henry. In 1118 A.D., under King Henry II, Judge Glanvill sped the evolution of the common law by organizing a system of “writs.” The writs set forth the proper management and remedies for lawsuits levied in the King’s courts, thereby promoting the concepts of consistent procedure and adherence to legal precedent.
On June 15, 1215, England’s legal system added a third critical component to its acceptance of the Bible and its system of common law: recognition of enforceable individual civil liberties. Swords in hand, the barons of England confronted King John on an open field and forced him to sign the Magna Carta. The agreement provided, in part:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.
The Magna Carta altered the course of English law, and made a singular contribution to world history, by inferring that individuals had certain inalienable rights, which not even the sovereign power of the King could derogate. The Magna Carta also articulated other rudimentary aspects of civil liberty, including due process, property rights, and the right to marry. It inferred that one critical characteristic of a free man was that his family could not be subjected to arbitrary seizure or interference by outsiders, including the sovereign.
So it was that England, in contrast to mainland Europe (dominated by the Roman Civil Code), adopted a more fluid, decentralized, common-law system of civil liberty. In Continental Europe, power was reserved to the ruler, and the ruler statutorily delegated limited powers to the People. In contrast, British common law tradition gradually recognized that power was reserved to the People, who delegated limited powers to the sovereign through a constitutional mandate. Liberty, including parental liberty, was a right of the People in Britain, rather than a mere grant of privilege from a ruler.
The evolution of early English common law was heavily influenced by a subtext of English cultural precepts. As previously noted, the cultural precepts were originally derived from the Bible. As a slow but sure result of this amalgamation, England's unique and innovative legal tradition began to limit sovereign authority and protect affirmative civil rights. Over time, the "parens patriae" (father of the nation) police power of the English Kings, which originally afforded virtually unlimited control over minors and incompetent persons, became circumscribed by the Rule of Law.
Thus, under the law of England, "the most universal relation in nature" was deemed to be "that between parent and child," 1 W. Blackstone, Commentaries on the Laws of England * 446. English jurist Sir Edward Coke (1552-1634) declared, "For a man's house is his castle, et domus sua cuique tutissimum refugium ('One's home is the safest refuge for all')." The Writ of Habeas Corpus was made available to parents seeking to rectify improper interferences with child custody.
English law also recognized that parents had a preeminent right to control their child's upbringing. As long as the parent did not forfeit this right through severe abuse or neglect, or the criminal behavior of the child, the government and other third parties acted only pursuant to a parent's voluntary delegation of authority. For example, Blackstone observed that a parent "may . . . delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child, who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed." Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 654 (1995)(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769))(emphasis added).
There was one very unfortunate exception to English protection of parental liberty, which helped engender later violations of civil rights by the Massachussetts Bay Colony and other localities against various American demographic minorities:
[T]he municipal laws of [England and] most countries . . . [do] not constrain[] the parent to bestow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labour under those griefs and inconveniences, which his family, so unintroduced, will be sure to bring upon him. Our laws . . . have in one instance made a wife provision for breeding up the rising generation; since the poor and laborious part of the community, when past the age of nurture, are taken out of the hands of their parents, by the statutes for apprenticing poor children; and are placed out by the public in such a manner, as may render their abilities, in their several stations, of the greatest advantage to the commonwealth. The rich indeed are left at their own option, whether they will breed up their children to be ornaments or disgraces to their family.
1 W. Blackstone, Commentaries on the Laws of England * 439; see also English "Poor Laws". Thus, English law permitted the King to take away the children of the poor, and conscript them into involuntary servitude for the benefit of the Kingdom. The notion was that wealthy landowners were entitled to enjoy more liberty than those who were poor or of minority heritage, for the latter were unworthy of self-determination.
The aforementioned Platonic aspects of English law were not eliminated in the United States at the constitutional level until passage of the Reconstruction Amendments, particularly provisions dealing with equal protection, involuntary servitude, and universal sufferage.
III. United States Constitutional Law
The thirteen original American colonies retained English common law as part of their own legal systems. Consequently, the Framers of the United States Constitution were well acquainted with English common law. As explicitly noted in the Seventh Amendment (and the Northwest Ordinance), the Framers contemplated that English common law would provide the basic legal predicate, context, and assumptions for the new Constitution. Common law provided the bedrock level of protection for civil rights, to which the Framers added many additional constitutional protections.
Thus, when the Framers provided in Article I, Section 9, that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it," they were referring to the Writ as it was defined by English common law. The Framers were well aware that England afforded a very broad Writ, which applied in and beyond the realm of criminal proceedings. The Writ permitted courts to directly intervene against improper removals, confinements, or custodial arrangements which affected a parent and child.
Not coincidently, the Writ later played an important role in the struggle of African-Americans and Native Americans to stop state-sponsored abductions of their children. E.g. United States ex rel. Young v. Imoda, 1 P. 721 (Mont. 1881); In re Lelah-Puc-Ka-Chee, 98 F. 429 (N.D. Iowa 1899). According to the United States Supreme Court, Congress enacted the Habeas Corpus Act of 1867 to statutorily and implicitly disallow federal-court habeas-corpus relief for state child-custody disputes. Lehman v. Lycoming County Children's Serv, 458 U.S. 502 (1982); see also Ex Parte Burrus, 136 U.S. 586 (1890).
The Framers, many of whom were home-educated, included numerous other protections of direct significance to alternative educators. The First Amendment protected freedom of religion, freedom of speech, the right of the people peaceably to assemble, and the right to petition the government for a redress of grievances. The Third Amendment protected the privacy of the home and forbade arbitrary government occupation of, or interference with, families, even during war. The Fourth Amendment forbade unreasonable searches of homes and unreasonable seizures of children.
The Fifth, Sixth, Seventh, and Eighth Amendments afforded other crucial safeguards including due process for both criminal and civil proceedings. Any proceedings which might affect parent-child relationships were entitled to due process. The Ninth Amendment forbade derogation of other "rights" "retained" by the People, and the Tenth Amendment protected "powers" "reserved" to the People.
The Framers and Founders left no doubt that their Constitutional system of Ordered Liberty, which protected parental rights in so many complementary ways, was incompatible with the Platonic model for an Ideal Commonwealth. In Federalist Paper No. 49, a work promulgated by Alexander Hamilton, John Jay, and James Madison, it is written:
The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. . . . In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.
I amused myself with reading seriously Plato's republic. . . . While wading thro' the whimsies, the puerilities, and unintelligible jargon of this work, I laid it down so often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this? . . . Education is chiefly in the hands of persons who, from their profession, have an interest in the reputation and dreams of Plato. . . . But fashion and authority apart, and bringing Plato to the test of reason . . . he is one of the race of genuine Sophists, who has escaped . . . by the adoption and incorporation of his whimsies onto the body of artificial Christianity. His foggy mind, is forever presenting the semblances of objects which, half seen thro' a mist, can be defined neither in form or dimension. . . . It is fortunate for us that Platonic republicanism has not obtained the same favor as Platonic Christianity; or we should now have been all living, men, women, and children, pell mell together, like beasts of the field or forest. . . . [I]n truth [Plato's] dialogues are libels on Socrates.
. . . When sobered by experience, I hope that our successors will turn their attention to the advantage of education on the broad scale, and not of the petty academies . . . which are starting up in every neighborhood . . .
In reciprocal letters to Jefferson, John Adams was equally critical. He said the "philosophy" of Plato was "absurd," Letter from John Adams to Thomas Jefferson (June 28, 1812), in Letters, at 308, berated Plato's concept of "a Community of Wives, a confusion of Families, a total extinction of all Relations of Father, Son and Brother," Letter from John Adams to Thomas Jefferson (September 15, 1813), in Letters, at 377, and observed that "Plato calls ['Love'] a demon," Letter from John Adams to Thomas Jefferson (October 10, 1817), in Letters, at 522.
In his most telling observations, Adams described his meticulous study of Plato's writings, expressed delight at knowing that Jefferson shared the same "Astonishment," "disappointment," and "disgust" with Plato, and then concluded as follows:
Some Parts of [his writings] . . . are entertaining . . . but his Laws and his Republick from which I expected the most, disappointed me most. I could scarcely exclude the suspicion that he intended the latter as a bitter Satyr upon all Republican Government . . . . Nothing can be conceived more destructive of human happiness; more infallibly contrived to transform Men and Women into Brutes, Yahoos, or Daemons than a Community of Wives and Property . . .
After all; as long as marriage exists, Knowledge, Property and Influence will accumulate in Families.
Some influential early Americans were openly critical of Europe's approach to education. For example, Thomas Paine, an influential essayist during the Revolutionary War, wrote a 1791 work entitled Rights of Man: Being an Answer to Mr. Burke's Attack on the French Revolution. In Chapter 5 of Part II, published in 1792, Paine proposed educational vouchers as a means for "improving the condition of Europe." He maintained that European education should be provided by private parties, at rates of exchange set by the free market. For his part, Thomas Jefferson supported a kind of tax-subsidized, parent-governed system of schooling for those families who wished to participate.
Parental liberties were so deeply ingrained in the culture of early America (with the possible exception of the Massachussetts Bay Colony) that few early controversies arose over parental authority after the Revolutionary War.
IV. Reconstruction Amendments to United States Constitution
Unfortunately, the liberties protected by the original Constitution were not deemed to apply to demographic minorities, especially African slaves. Abrogation of parental liberty was a core badge and incident of slavery. African-American parents lost children to state-sanctioned slave auctions, and were prohibited from providing education to their families. After the Presidency of Andrew Jackson, Native Americans and other demographic minorities also faced increasing attack against their parental liberty and educational independence. Compulsory attendance laws, first passed in Massachusetts in 1852, were an important component of this effort.
The Thirteenth Amendment was added after these developments to prohibit "slavery" and "involuntary servitude." The Fourteenth Amendment was also added to extend the Bill of Rights and Writ of Habeas Corpus to all citizens, by stating that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
In Meyer v. Nebraska, the United States Supreme Court made it clear that Fourteenth Amendment "liberty" protected the parental rights of all citizens. The Court noted, in part:
While this court has not attempted to define with exactness the liberty [of the Fourteenth Amendment] thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to 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 those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . .
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
'That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. ... The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.'
In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.
The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error.
The Court's observations were astute, for no citizen enjoys a condition of true liberty when their children or family members have been arbitrarily seized or appropriated by a sovereign power. Many citizens favor a "homogeneous people," so long as they imagine that it means that everyone else will do the changing required to make homogeneity possible. Compulsory education as the means to homogenization likewise seems like a wonderful idea to many, until they realize that such a course will cast them as victims of forced inculcation instead of the masters of it.
V. Internationalization of the Parental Liberty Doctrine
American civil rights jurisprudence, including the principles explained in Meyer, greatly influenced international law and politics during the aftermath of World War II. This was especially true for countries which were not part of the British Commonwealth system of law.
During the post-War period, the Axis powers were criticized and punished for crimes against humanity. Home-educated General Douglas MacArthur presided over the post-War reformation of Imperial Japan, which had employed a statist public school system. Fascist Italy was rebuked for similar statist educational tactics, which were designed to invoke the glory of ancient Rome. The excesses of Stalin's Soviet Union, and of the Ottoman Empire prior to the end of World War I, weighed on the public's consciousness.
In contrast to the English common-law tradition adopted by the United States, Prussia had developed a strident "parens patriae" (father of the nation) doctrine that laid the cultural predicate for World War I and World War II. This occurred in large part because Napoleon humiliated Prussia in the early 1800's and imposed the Napoleonic Code (which was based upon Roman civil law). Prussia society responded by assimilating a militaristic, Spartan system of education, in an attempt to vindicate itself on the international stage. The Prussian philosophy of cultural purity and intellectual uniformity then influenced other educational systems, particularly the 1850's compulsory-attendance movement in the United States.
The Prussian movement reached a crescendo during World War I. Meyer, which was handed down after the end of World War I, was a direct repudiation of the Prussian educational approach. But over the course of the 1930's and 1940's, Germany (political successor of Prussia) revived its absolutist parens patriae legal doctrine for a second attempt at cultural utopia.
Hitler used Germany's compulsory education system to consolidate political power, seize control of Germany's human intellectual capital, and identify his ideological opponents. He committed numerous acts of cultural genocide and educational abduction, particularly against the families and schools of demographic minorities who happened to live in Germany. His methodology represented a sophisticated, updated template for achieving monolithic social control.
Hitler's template has been emulated by many subsequent regimes, including Iraq under Saddam Hussein.
After the World War II, most nations of the world deemed German actions to be a crime against humanity. Governments slowly came to recognize the clear link between ethnic cleansing and the abrogation of parental liberty.
Today parental liberty has become an integral aspect of international law and politics. In the wake of World War II, protection for parental liberty is now legally recognized in many countries with no British or western legal heritage. Cultural genocide, child-abduction, slavery, and other denials of parental rights are increasingly condemned as crimes against humanity. Such condemnations even appear in documents such as the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, the Universal Declaration of Human Rights, and the United Nations Draft Declaration on the Rights of Indigenous Peoples. Interference with parental liberty is regarded as unacceptable, except under unusual and compelling circumstances, regardless of whether the violations are perpetrated against Jews in Germany, Aborigines in Australia, or Shiite Muslims in Iraq.
VI. Conclusion
In the United States, parental liberty has been repeatedly upheld as an integral aspect of constitutional jurisprudence. Parental liberty was recently reaffirmed as a "fundamental" right in Troxel v. Granville, a landmark case handed down in the year 2000. To the extent that the United States maintains educational choice, parental liberty, and a tradition of home education and entrepreneurism, it will continue to be a leading economic and intellectual power in the international arena.
Parental rights are an essential feature of a healthy, modern, pluralistic, participatory, economically-efficient society. The lives of people around the world are greatly enhanced by expansions of parental liberty, even if they are not personally involved in alternative education. Whenever parental liberty is strengthened or respected in a new jurisdiction, the world takes another stride towards a more equal, progressive, vibrant global society.
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