Minimum Standards

In the United States, arbitrary deprivation of a liberty interest is usually unconstitutional. Parental liberty and many other rights are constitutionally-protected liberty interests.

Governmental entities must have a constitutional (and often, statutory) grant of authority to adjudicate, regulate, or enforce particular laws, activities, parties, and controversies. To intervene, courts must have jurisdiction, legislators must have a constitutional grant of power, and executive entities must have both constitutional and statutory delegation of authority. An ultra vires (unauthorized) exercise of power by a governmental entity is both inappropriate and void. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998).

In addition, under the Rule of Lenity, a person cannot properly be deemed to be in violation of a law that is vague. Bell v. United States, 349 U.S. 81 (1955); United States v. Harriss, 347 U.S. 612 (1954); Lanzetta v. New Jersey, 306 U.S. 451 (1939). A person of ordinary intelligence must be able to read existing law and know in advance whether their conduct will incur sanction from the government, and what the sanction will be. Liparota v. United States, 471 U.S. 419 (1985); Kolender v. Lawson, 461 U.S. 352 (1983); Rabe v. Washington, 405 U.S. 313 (1972); United States v. Bass, 404 U.S. 336 (1971); United States v. Cardiff, 344 U.S. 174 (1952); McBoyle v. United States, 283 U.S. 25 (1931). For example, a state statute requiring parents to provide an education to their children which is “adequate” or “equivalent to public instruction” will often be constitutionally insufficient in terms of defining what constitutes a “violation” of the law.

Even when it enjoys ostensible jurisdiction or power over the subject matter of the controversy, no tribunal, administrator, executive, or legislator can rescue a vague guideline by “clarifying” the meaning after the underlying controversy has ensued. The United States Constitution’s ex post facto clauses prevent retroactive creation or enhancement of legal standards for criminal and quasi-criminal adjudications and enforcements. Article I, Section 9, Clauses 2-3; Article I, Section 10, Clause 1; Bouie v. City of Columbia, 378 U.S. 347 (1964); Calder v. Bull, 3 U.S. 386, 390 (1798)(Chase, J.).

Furthermore, procedural due process is required before a deprivation of liberty by the government, even when the statute, regulation, or precedent represents a valid exercise of authority and is not vague or ex post facto. Procedural due process requires, among other things, impartial adjudication and a fair opportunity for the accused to present a meaningful defense. See Tumey v. Ohio, 273 U.S. 510 (1927); Connally v. Georgia, 429 U.S. 245 (1977).

By examining the minimum standards of fairness, courts are frequently able to decline enforcement of improper laws and regulations without reaching more weighty questions of constitutional law.

Finally, substantive due process forbids certain deprivations of liberty, regardless of other considerations or requirements. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000). For example, a parent who has not posed a threat to the wellbeing of their child cannot normally be properly deprived of child custody. As another example, state governments may have an interest in seeing that children acquire basic reading, writing, and mathematics skills, but under the First Amendment and the Fourteenth Amendment the state’s legitimate interest typically does not properly extend to de facto mandated inculcation of specific curriculums, pedagogies, instructors, or worldviews. Families have the right to innovate and assess their own unique opportunity costs pertaining to pedagogy and subject matter.

See also Fundamental Right to Direct the Upbringing of One's Child, Systemic Civic Dysfunctions.