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Constitutional Right to Home-School?

An interesting opinion from a Georgia Court of Appeals chief judge Stephen Dillard.

Whether states may ban home-schooling is a surprisingly complex question. The Supreme Court has famously held that states may not compel parents to send their children to public schools, but the cases on the subject (Pierce v. Society of Sisters (1925)) expressly secure only a right to send the kids to private schools -- Pierce itself noted that,

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.

Perhaps this should just be taken literally to mean that the Court wasn't deciding this question. Or perhaps "require[ments] that all children of proper age attend some school" should -- as a constitutional matter -- be satisfied by a showing that the child is "attend[ing]" a home school that is allowing the child to perform at or beyond grade level. Or perhaps the means for regulating home schooling (such as tests that show a student's progress) are much more advanced now than they were then, and that regulated home schooling is a "less restrictive alternative" that would still accomplish the government interest in making sure children are adequately educated. But as best I can tell, the lower court decisions dealing with the subject have generally taken the view that bans on home schooling (or requirements that only people with suitable teaching credentials may home-school) are constitutional under Pierce. In recent decades, home-schooling has been legal in nearly all states, as a result of legislation, not constitutional litigation; so there have been few cases recently having to deal with this question.

Religious homeschooling is a different matter. Wisconsin v. Yoder held that the Amish could pull children out of school at age 14, and then vocationally train the children at home, notwithstanding a compulsory education law that generally required school attendance until 16. Yoder survives the Court's decision in Employment Division v. Smith (which mostly holds that the Free Exercise Clause doesn't require religious exemptions from generally applicable laws, but which expressly preserves such claims in parental rights cases like Yoder). And in People v. DeJonge, 501 N.W.2d 127 (Mich. 1993), the Michigan Supreme Court generally held that there is a constitutional right to home-school for religious reasons, though with some regulations (not including a requirement that one parent be a certified teacher, which is the very requirement that the Michigan Supreme Court struck down).

Last week, Judge Stephen Dillard, chief judge of the Georgia Court of Appeals (and, back in the day, blogger Feddie at Southern Appeal), wrote an interesting concurring opinion (Borgers v. Borgers) forcefully defending such a right. I personally think that defining the scope of parental rights is a complicated matter, and while I support the right to homeschool on policy grounds, I'm not positive that it should be recognized as a constitutional right; but the opinion struck me as very interesting, and I thought I'd pass it along.

The case is a child custody dispute, in which the trial judge ordered the mother to enroll a child in school (who would presumably be the Montessori School to which she had gone before) instead of homeschooling. The court's opinion overturned the order on procedural grounds, and Chief Judge Dillard agreed, but also added:

The liberty interest of parents to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights we hold as a people, and is "deeply embedded in our law." This cherished right derives from the natural order, preexists government, and may not be interfered with by the State except in the most compelling circumstances. And while I agree with the majority that the trial court lacked the authority to alter the parties' custody agreement in this contempt action, I write separately to express my serious concerns with the court's decision to summarily substitute its judgment regarding the child's education for the mother's without identifying evidence of the compelling circumstances necessary to interfere with her constitutional parental rights. In doing so, the trial court failed to give sufficient consideration to the federal and Georgia constitutions, both of which afford significant protection of a parent's right to the care, custody, and control of his or her child—which undoubtedly includes the right to make educational decisions.

Our trial courts must be mindful in every case involving parental rights that, regardless of any perceived authority given to them by a state statute to interfere with a natural parent's custodial relationship with his or her child, such authority is only authorized if it comports with the long-standing, fundamental principle that "[p]arents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children."

In this respect, the Supreme Court of the United States has acknowledged that "[t]he liberty interest ... of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests ...." And while a parent's right to raise his or her children without state interference is largely expressed as a "liberty" interest, the Supreme Court of the United States has also noted that this right derives from "privacy rights" inherent in the text, structure, and history of the federal constitution.

In Georgia, a parent's natural right to familial relations is also recognized "under our state constitutional protections of liberty and privacy rights." Indeed, Georgia courts have repeatedly recognized that "the constitutional right to raise one's children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances." In fact, according to our Supreme Court, "there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his or her] offspring." And the fundamental liberty interest of natural parents in "the care, custody, and management of their child does not evaporate simply because they have not been model parents. ..." To be sure, parental rights are not absolute. But when this fundamental liberty interest is at stake, the court must "give full, fair, and thoughtful consideration to the serious matter at hand."

Suffice it to say, a parent's right to the care, custody, and control of one's child includes a constitutionally protected right to make decisions regarding the child's education—including the choice to homeschool. Indeed, in addition to the Supreme Court of the United States's landmark decisions in Meyer, Pierce, and Yoder, the fundamental right of a parent to homeschool his or her child is also supported by Washington v. Glucksberg, which held that the federal Constitution "specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition."

As one legal scholar has observed, homeschooling was "not only legal at the very early stages of our 'history and tradition,' but was also the predominate form of education." A parent's fundamental right to homeschool his or her children was also, significantly, "recognized and unchallenged when the Constitution was drafted and when the Fourteenth Amendment was passed." And while the Supreme Court of Georgia has yet to explicitly declare that a parent's right to care, custody, and control of his or her children includes the right to homeschool them, it is difficult to see how the Court's reasoning in Patten v. Ardis [striking down a grandparent visitation statute on parental rights grounds]which is steeped in this state's constitutional and jurisprudential history—would not apply with equal force and extend to such a fundamental parental duty. There is little question, then, that parents have a fundamental right under the United States and Georgia Constitutions to homeschool their children.

Nevertheless, here, in addition to disregarding the plain terms of the current custody agreement, the trial court appears to have given little, if any, consideration of the mother's constitutionally protected liberty interest in deciding to homeschool her child. Indeed, without even referencing the significant liberty interests at stake, the court questioned and undermined the mother's choices regarding her child's education, ordering her to enroll the child in the Montessori school to "ensure the child is not 'homeschooled'" based on its "own beliefs as to the child's best interest[.]"

And while the trial court may be right that it would be more "convenient" for the child to attend the Montessori school because the mother works there, a parent's constitutional right to make educational choices for his or her child is not limited to those a judge (or any other state actor) deems to be convenient or wise. Thus, even if the trial court had been authorized to modify the parents' custody agreement (which it was not), it did not reference any evidence of the compelling circumstances necessary to substitute its own preferences as to the child's education for the mother's decision to homeschool her child. And when state actors engage in this sort of Orwellian policymaking disguised as judging, is it any wonder that so many citizens feel as if the government does not speak for them or respect the private realm of family life.

In sum, I take this opportunity, yet again, to remind our trial courts that, in making any decision or taking any action that interferes with a parent-child relationship, our state statutes are subordinate to and must be construed in light of the fundamental rights recognized by the federal and Georgia constitutions—which both include a parent's fundamental right to homeschool a child.

As this Court has rightly recognized, "[t]he constitutional right of familial relations is not provided by government; it preexists government." Indeed, this "cherished and sacrosanct right is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable." Thus, regardless of a court's personal feelings or perception of a parent's fitness to care for or retain custody of his or her child, careful consideration of these bedrock constitutional principles and safeguards must remain central to each case without exception. And when this fails to occur, we will not hesitate to remind our trial courts of the solemn obligation they have to safeguard the parental rights of all Georgians.

For an interesting (and I think mistaken) homeschooling / child custody case from several years ago, see here; for a Reason article on homeschooling from 1983 -- when, to my knowledge, homeschooling was much less widely accepted -- see here.

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  • M.L.||

    They're my kids. The State can go pound sand.

    I don't home school, but still, the idea that I don't have the right to is offensive. If this idea were established, it would have deleterious effects even on those who were not otherwise exercising the right, much as the right to bear arms has a deterrent effect that benefits non-gun owners.

  • Rev. Arthur L. Kirkland||

    Children of substandard parents have rights, too.

  • The original jack burton||

    Could anyone possible even imagine the trauma of being reared as a child of AK?

  • MatthewSlyfield||

    First you would have to imagine the horror of AK reproducing...

  • Alcibiades||

    No, you recoil from even the thought of it.

    Thankfully we have that Second Amendment as defense against the barking loons of the world such as the bitter, clinging Rev.

  • Rev. Arthur L. Kirkland||

    Be nicer, clingers, or I might instruct my children (with their fancy advanced degrees, marketable skills, reliance on reason, and familiarity with standard English) not to hire your families to mow our lawns, clear our walkways, and detail the vehicles.

    Think carefully about this. That handful of street pills you must swallow to get throughout another desolate day in the deplorable backwaters is not free.

  • Alcibiades||

    You're a sad, sad, bitter little man.

    Devoid of hope, burdended by a crushing sense of inferiority and social inadequacy, humiliated at every turn, you lash out to all.

  • Rev. Arthur L. Kirkland||

    My preferences have prevailed in America throughout my lifetime and this seems destined to continue. My side won the culture war and is continuing to shape America's progress against the inconsequential aspirations of disaffected, angry, easily frightened, gullible, stale-thinking conservatives.

    I am content. Winning and being on the right side of history is enjoyable.

  • Alcibiades||

    A sad, sad, bitter lonely old man.

  • Rev. Arthur L. Kirkland||

    I discount the opinions of disaffected, anti-social, marginalized right-wing losers and malcontents.

    This close to an election, shouldn't you be trying to suppress some black votes for the Republican Party, you bigoted rube?

  • Alcibiades||

    Still bitter, still clinging, still incoherent.

    Please, won't you give a thought to this sad little man.

  • The original jack burton||

    The problem with this "sad little man" is that a reader never quite knows if it is really Artie or one of his many mockers. Being a living example of Poe's Law makes life rough for him.

  • FlameCCT||

    "...familiarity with standard English..."

    Only familiarity? Now that is truly sad as my mother taught me proper English before I even attended school.

  • Martinned||

    Just out of curiosity, did your kids come with a title deed? Or some other kind of proof of ownership that you could share with the class? Because mine just came with a whole heap of responsibility.

    But seriously, the idea that parents could have some kind of "liberty interest" in what they do with other individuals is horrific. Putting parents in charge of raising kids is probably the least bad solution - certainly better than creating Sparta-style centralised education camps - but it isn't some kind of bonum in se. In specific situations, limiting what parents can do with their kids seems entirely appropriate. That's why we have child endangerment laws, laws about mandatory schooling, etc. Whether parents should have the right to teach their kids that the sun is blue and the moon is made of cheese is a question we should be able to discuss, not one where the presumption should automatically be that the parents should get what they want.

  • Kyfho Myoba||

    What a load of hooey. I don't trust ANYONE to care for children more than their parents - the very least of all, some government, even (or especially) one described and administered by Martinned. And by that reasoning, of COURSE the presumption should automatically be that the parents should get what they want, especially when the "government" wants something else, only exception is when the child is in IMMEDIATE PRESENT danger.

  • Sigivald||

    "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 suspect much of that wouldn't stand up to Constitutional scrutiny today.

    (Requiring "patriotic disposition" of teachers? Yeaaaah, not so much.)

  • KHP54||

    Well, as long as parents have adequate opportunities to obtain alternate schooling for their children, I don't see a big problem with the *state* requiring employees at a *state-run* school to at least avoid directly expressing their hostility to the legitimacy of that very state.

    Parents who wish their children to get "Down With Oregon!" type messages as part of their regular instruction can just send their kids to non-state schools.

  • santamonica811||

    KHP,
    I am (obviously) not Sigvald, but I suspect her/his point was along the lines of a teacher expressing thoughts like, "America under President Trump is in decline, and his lies and racism is helping destroy the moral fabric of our once-great country." (Or, if you prefer, "America under President Hillary Clinton is in decline, and her cronyism and dishonesty is helping destroy...etc etc.")

    Should such a teacher be fired for the lack of patriotic disposition? I think most of us would say 'no.' (Assuming, of course, that this expression did not detract from the teaching process...the case of a maths teacher spending 20% of her time each day railing about politics would, of course, be good cause to fire her.)

  • FlameCCT||

    I suspect much of that is no longer found in Public Indoctrination Centers pka Public Schools today.

  • Kyfho Myoba||

    "'No question is raised" means that that argument had not been made, not that the power of the state is confirmed, merely that this case does not question it.

  • CJColucci||

    See Kay v. Board of Education of the City of New York, 173 Misc. 943, 18 N.Y.S.2d 821 (Sup. Ct. N.Y. 1940).

  • ||

    "that teachers shall be of good moral character and patriotic disposition"

    Yikes! What a can of worms that is. In today's society, I see nothing other than fights to the death about which teachers meet those requirements.

  • swood1000||

    For an interesting (and I think mistaken) homeschooling / child custody case from several years ago, see here;

    This link is broken.

  • Eugene Volokh||

    Whoops, fixed, thanks!

  • apedad||

    PENUMBRA!!!

    TrueAmericanParrot, did I use that correctly?

  • swood1000||

    The "liberty" interest of parents to direct the education of their children brings to mind the asserted liberty interest of the mother to abort her baby. Does the child have a legitimate constitutional interest here? In balancing these interests would it be reasonable to require that home-schooling parents meet the minimum requirements necessary to teach in the public schools?

  • Eddy||

    I suppose if they can show that it is seriously harmful to children if their instructor doesn't have a degree in Education, then they can make such a requirement.

    I anxiously await the studies showing that, say John Stuart Mill was inadequately educated because his dad lacked a Master's in Education.

  • swood1000||

    I anxiously await the studies showing that, say John Stuart Mill was inadequately educated because his dad lacked a Master's in Education.

    On the other hand, do you need a study showing that an illiterate parent should not be the only person teaching his child how to read?

  • Eddy||

    The Michigan Supreme Court decision cited in the post struck down a law that homeschool parents had to be certified teachers, so that's what I was responding to.

  • Eddy||

    Oh, and it seems your post mentioned a similar requirement.

  • The original jack burton||

    Speaking as a parent who homeschooled three children thru K-12, and who's wife has a Master's in Education, I can categorically state that having a teaching degree has very little to do with actually teaching in a one-on-one home setting. Managing a class of 20 to 30 students and managing a student sitting at the kitchen table requires different skills and even subject knowledge.

    Many of my children's homeschooled peers have successfully gone on to graduate from college and have productive, adult lives even with a parent/teacher who only had a high school education.

  • swood1000||

    Many of my children's homeschooled peers have successfully gone on to graduate from college and have productive, adult lives even with a parent/teacher who only had a high school education.

    One can point to many astonishingly learned people who had no formal education whatsoever. But this is not a good argument in favor of having no formal education. The real question is whether it is appropriate to require a parent to have any minimum level of education at all in order to homeschool his or her child, and if so, what that level would be.

  • swood1000||

    And if so, how is that reconciled with the fact that some States have no minimum level of education at all to teach in a private school.

  • The original jack burton||

    I didn't see or read anyone arguing "in favor of having no formal education."

    And why is that the "real question."

    Should not the "real question" be focused on the child?

  • swood1000||

    I didn't see or read anyone arguing "in favor of having no formal education."
    And why is that the "real question."
    Should not the "real question" be focused on the child?

    The reason for limiting home schooling can only be based on the assertion that home schooling is an inferior form of education. Those defending home schooling reply that they have a right as parents to educate their children. My point is that this 'right' cannot be absolute. For example, take the most extreme case of the parent who is illiterate. Even those strongly on the side of home schooling would agree that such a parent should not be teaching his or her children to read. Most people would agree that there should be a minimum education requirement for such parents (analogous to the fact that parents have charge of their children's physical well-being but may not deny essential medical care).

    So the "real question" is what minimum level of teacher educational competency children are entitled to. I agree with you that neither a teaching degree nor a college education should not be required, but I also say that although some people have excelled by being entirely self-taught (as where the parent/teacher is absent or completely uneducated) this should not be considered acceptable.

  • ragebot||

    Given the results some of these minimum requirement teachers currently are producing one could argue that the parents should simply be able to produce high school graduates that can't do simple arithmetic and are functionally illiterate.

  • SimonP||

    The question has been raised in New York, where special dispensation for educationally-inadequate Jewish schools is being challenged on various grounds.

    It's disappointing to me, here, that Dillard seems to overlook the judge's role as specifically representing the interests of the child, and not merely substituting his or her own judgment for the parent's. It's an almost amateurish take on the judicial role, one I would expect of a Reason commenter.

  • Rev. Arthur L. Kirkland||

    Dillard seems to be focused myopically on advocacy for disaffected, anti-social, lousy parents, causing him to disregard a child's interest in overcoming substandard parents through the education a decent society would arrange.

  • David Nieporent||

    It's disappointing to you that Dillard applied the correct legal standard rather than an entirely different and inappropriate one? Judges do not have some free-floating authority to decide what's in a child's interests. And the trial judge was in fact (and incorrectly) merely substituting his own judgment for the parent's.

    (And judges do not have a "role" of "representing" anyone, including the child. If there were an issue of the parents in some way harming the child, then the judge could appoint a guardian ad litem to represent the interests of the child. But that would be the guardian's job, not the judge's.)

  • Rev. Arthur L. Kirkland||

    Dillard was not applying any particular legal standard so much as publishing a free-floating ode to the 'sovereign citizen' concerns and grievances popular among disaffected, anti-social right-wingers.

  • Voize of Reazon||

    Perhaps if the judge had balanced the child's rights against the custodial parent's and decided on that basis Dillard would not have objected. Perhaps if the trial court had balanced any other compelling interest against the custodial parent's rights Dillard would have been satisfied. His complaint is that they did neither.

  • FlameCCT||

    Unfortunately many of those with an education degree are woefully inadequate in the actual subject matters. Unable to teach basic Math, English, History, Science, etc.

  • Rev. Arthur L. Kirkland||

    Not to mention capitalization and sentence construction . . .

  • Krayt||

    It would have been interesting to see the decision legalizing gay marriage rely on this concept a little more. Through it all I kept pointing out how marriage came out of religion and out of culture, of two people making vows to each other in public and before God.

    Then government insinuated itself into this, and lorded over it, instead of doing what it should and just recognizing the marriage performed outside of any government-as-actuator.

    Conceptually, marriage is not a governmenr function. If you are religious, it is a religious function, and government should, if it needs to for divorce reasons, "recognize" a marriage, it should be powerless to define this and just accept what religion, the couple, and their two witnesses say it is. And if atheist, skip what the religion says.

    To the religious, the important part was God recognizing it, not some latecomer to the party who has guns to tell God what they permit as a marriage.

  • Dilan Esper||

    That is one conception of marriage. There are others.

    Catholicism prohibits divorce. Should civil marriage prohibit divorce too?

  • Smith_FT_MI||

    Krayt,

    Spot on! As with most private actions and choices, the role of government is but to *recognize*, not *sanction* those actions and choices.

    Even for those who classify homosexual activities as morally objectionable, removal of the state from the role of authorizing a same-sex marriage would have alleviated most of their objections; the primary opposition was to the state placing its imprimatur upon the propriety of this private action of the parties. Such a rationale would have rendered a holding of the right to same-sex marriage less contentious.

  • bernard11||

    But state involvement is not merely symbolic. The government confers privileges and obligations on married couples. This is quite apart from whatever the religious significance of a marriage is. Wherther you call that recognizing or sanctioning is immaterial.

    So first, there must be ways for the non-religious to marry and enjoy those privileges, which means domeone has to be authorized to perform the wedding. Second, if the authorized individual - clergy or secular - does have a wedding for a same-sex couple, on what basis can the government refuse to recognize it?

  • David Nieporent||

    So first, there must be ways for the non-religious to marry and enjoy those privileges, which means domeone has to be authorized to perform the wedding.

    That is not correct. See, e.g., the concept of common law marriage, which requires no such authorization (and indeed, no actual wedding).

    (To be clear, I am quite aware that many states do not recognize common law marriages. I am speaking not of any specific state, but just of the conceptual framework.)

  • Voize of Reazon||

    True, but I'd have to give Bernard part marks here. Only ten states and DC do allow common law spouses to "enjoy those privileges", so his point is valid rather more often than not.

  • jph12||

    Did common law marriage used to be available in more states, only to be prohibited as states increasingly codified their laws, or has it always been an outlier?

  • MatthewSlyfield||

    "Did common law marriage used to be available in more states"

    Yes, prior to the Civil War, all of the states recognized common law marriages. While many did issue marriage licenses, they were generally not mandatory.

    The push to make marriage licenses mandatory and eliminate common law marriage happened in the wake of the Civil War as part of efforts to block/outlaw interracial marriage.

  • Smith_FT_MI||

    Like David, I was referencing a conceptual framework.

    As one possible option, the marriage partners could simply present themselves at a local agency and sign a registry acknowledging that they have agreed to become spouses. It might, or might not, consist also of registering a marriage contract - similar to recording a deed to property.

    Of course if the partners decided to pursue some type of religious ceremony, then they could register the officiating official's certificate. But a wedding per se would not be required.

    This framework would be apart from any possible common law marriage recognition.

  • Voize of Reazon||

    What you describe are variants of common law marriage recognition. Some states require registration before they will recognize the marriage, some don't. What they have in common is they don't require a license.

  • Smith_FT_MI||

    Thanks. Family Law is one area I avoided as much as possible. My knowledge of Common Law Marriage, even in Michigan, goes way back to my bar review course. Thus, I was unaware of the various regimens.

    The elimination of the requirement of a license is essentially what I was addressing. It would then seem that much of the problem on this issue - as well as to many other issues of controversy - was the result of the state "sticking its nose in where it didn't belong".

  • swood1000||

    Then government insinuated itself into this, and lorded over it, instead of doing what it should and just recognizing the marriage performed outside of any government-as-actuator.

    The institution of marriage is very important to the stability of society. So government has a primary interest in regulating how people enter and exit this status.

    and government should, if it needs to for divorce reasons, "recognize" a marriage, it should be powerless to define this and just accept what religion, the couple, and their two witnesses say it is.

    Since marriage affects the stability of society and so many individual secular rights, government has an interest in making sure that people show that they understand the solemn nature of the event. For example, it has an interest in concluding that children should not be permitted to marry since they cannot comprehend the legal effect of what they are doing, regardless of what some religion might say. Furthermore, many have concluded that incest is harmful to society and so such marriages should not be permitted.

  • swood1000||

    The 14th amendment says that 'No state ... shall deprive any person of life, liberty or property without due process of law.'

    William Blackstone, in Commentaries on the Laws of England, had a chapter on "The Absolute Rights of Individuals," in which he described the rights to life, liberty and property:

    these may be reduced to three principal or primary articles . . . I. The right of personal security [consisting] in a person's legal and uninterrupted enjoyment of his life, his limbs . . . II. . . . the personal liberty of individuals . . . [consisting] in the power of locomotion, of changing situations or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint, unless by due course of law . . . III. The third absolute right, inherent in every Englishman . . . of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.

    In 1866, James Wilson, chairman of the House Judiciary Committee, read the Blackstone triad to the 39th Congress and commented, "Thus, sir, we have the English and American doctrine harmonizing."

    Was James Wilson correct that 'liberty' as used in the Constitution had the meaning described by Blackstone? If so, the right to educate one's children as one wishes was not included. When did it become included?

  • Stephen Lathrop||

    This cherished right derives from the natural order, preexists government, and may not be interfered with by the State except in the most compelling circumstances.

    Whatever you want to say about Constitutional rights, that pretty much shows this guy doesn't understand them. Start with the logical problem, then move on to practical questions.

    Logically, a right is a power vested in an individual to stay the hand of government. In times preexisting government, how can you enjoy a power to stay the hand of government?

    Practically, maybe he is saying there are governments, and that with governments, there come extra-Constitutional rights that courts are bound (how?) to enforce. Which would invite also the questions: "How can we know what these rights are? How can the courts know? What about folks who disagree? What prevents all parties to these questions from enjoying equal status of decision? What rules of decision govern when these rights conflict?" Those questions are unanswerable on any non-arbitrary basis.

    The statement quoted above is not a basis for sensible talk about government. It is rhetoric inspired by an 18th century example intended to cast a net wide enough to recruit alike all enemies of a disliked sovereign, however motivated. It is akin to the modern practice of politicians proclaiming promises so vague that any listener is free to suppose the politician intends the listener's own aspirations.

  • Perseus`||

    It's called a natural right. Without government, everyone has the executive power of the law of nature to enforce their rights as they see fit. That executive power--but never the rights themselves--is transferred to government following the social contract. E.g., Jefferson (Notes on Virginia Q. XVII): "But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit." Your vile interpretation of "popular sovereignty" would have the effect of reducing all rights to civil or positive rights that are ultimately the gift of the government.

  • Dilan Esper||

    The gaping problem with natural law is that it isn't anything more than one person's political preferences.

    Law has to constrain. No person in history has ever said "I believe in X, but it is against the natural order so it is prohibited".

  • swood1000||

    Your vile interpretation of "popular sovereignty" would have the effect of reducing all rights to civil or positive rights that are ultimately the gift of the government.

    What are the 'natural rights' that you think the courts should recognized even though they are not mentioned in any law or Constitution?

  • Smith_FT_MI||

    Well, one is the right to "defense of self and preservation of one's life". This right existed prior to the Second Amendment's ratification - and still exists independent of it.

    Blackstone's commentaries, as quoted above, also identifies others. (And I would not deem those expressed by him to be exclusive.)

    But this at least is a short answer to the question.

  • swood1000||

    Well, one is the right to "defense of self and preservation of one's life".

    But this one is found in the Constitution, as a part of "life, liberty and property."

    Blackstone's commentaries, as quoted above, also identifies others.

    Blackstone's commentaries, as quoted above, talks about life, liberty and property, which are explicitly protected by the Constitution.

  • Smith_FT_MI||

    Yes, but what if they were not? Would it mean that rights which preexisted the formation of government could not be exercised?

    The recognition of certain natural rights by the Constitution does not mean that the rights are derived from it. In this specific instance let us assume the unlikely repeal of the Second Amendment and those provisions of the Fourteenth Amendment. Would it mean the individual's right to defense of self was necessarily abolished?

    Now as a matter of legal interpretation, if the amendment repealing those rights was sufficiently explicit that the the individual's right to defense of self was expressly abolished, a good argument could be made that it could no longer be exercised. But then we are presented with the question whether it is beyond the power of any government to abolish a natural right.

  • swood1000||

    Yes, but what if they were not? Would it mean that rights which preexisted the formation of government could not be exercised?

    Do you think people should be permitted to go into federal court and try to get a legal judgment backed by the authority of the government, based solely on natural rights not anywhere mentioned in any law or constitution? If so, are you in favor of common-law constitutional adjudication where constitutional rights can be added to and subtracted from based on the opinion if the judiciary as to right and wrong? Would it be appropriate to treat such judges more like politicians, since they would clearly be setting public policy? Is a legal education sufficient to prepare someone for such a role?

  • Alpheus W Drinkwater||

    I'm not sure if I think people should be permitted to do that. But the founding generation who ratified the 9th amendment apparently did.

  • swood1000||

    I'm not sure if I think people should be permitted to do that. But the founding generation who ratified the 9th amendment apparently did.

    The ninth amendment is a part of the Bill of Rights, the purpose of which was to limit the authority of the federal government, but you would have us interpret it as giving the Supreme Court (a branch of the federal government) the ability to alter the authority and power of the federal government with no oversight from either Congress, the President or the States?

    The purpose of the ninth amendment was to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it by the Bill of Rights. It was simply making clear that specifying one right does not constitute a delegation of power to legislate in areas not prohibited to it.

    In fact, the supposition that the federal judiciary has the power to create rights not mentioned in the constitution and to prohibit the states from legislating in these areas is contradicted by the 10th amendment, since nowhere is such a power delegated to the federal judiciary.

  • jph12||

    "But this one is found in the Constitution, as a part of "life, liberty and property."

    Those references are part of the Due Process Clauses. It seems a little odd to interpret them as a generalized right of self-defense against non-government actors.

  • swood1000||

    Yes, but what if they were not? Would it mean that rights which preexisted the formation of government could not be exercised?

    Apparently, all states generally recognize a statutory or common-law right to use force against another person in self-defense, twenty-one of them in their state Constitution. You are arguing that such a right exists in any case, and while that may be true from a philosophical point of view it is not necessarily true from a legal point of view if there are laws in place forbidding it under criminal penalties.

    But then we are presented with the question whether it is beyond the power of any government to abolish a natural right.

    But there is abundant evidence that many governments have exercised such power. Consider the Nazi atrocities in Auschwitz. Perhaps you are using the word 'power' in a sense other than physical power of coercion.

  • Smith_FT_MI||

    Swood,

    I should have inserted the word "legitimate" before "power" in "beyond the power" - or a phrase with comparable meaning.

    And I concur that my argument proceeded from a philosophical point of view. Still, as to the four (4) questions you addressed from above, I would be of the opinion that, with severe restrictions, a common law adjudication of natural rights would be justifiable; this again proceeds primarily from a philosophical point of view. Thus, with limitations, I would venture a qualified Yes answer to the first two.

    But it would require reference to and justification from clear historical practice and acceptance. And in this reference could and should be made to practice and acceptance from even prior to the time of Henry II. But since it would require considered and cautious deliberation and discernment, I would answer No to your last two questions.

    Within such a framework I would venture that there could be reasonable consensus on what would be deemed a natural right.

  • swood1000||

    Those references are part of the Due Process Clauses. It seems a little odd to interpret them as a generalized right of self-defense against non-government actors.

    I concede the point, though it also seems a little odd to suppose that a government has the authority to authorize or assert the right of a third party to inflict an injury that the government itself is expressly forbidden from inflicting.

  • swood1000||

    though it also seems a little odd to suppose that a government has the authority to authorize or assert the right of a third party to inflict an injury that the government itself is expressly forbidden from inflicting.

    Perhaps this is a little over-broad. Government is forbidden from discriminating on the basis of speech but it protects my right to forbid you to enter my house solely because of your past speech.

  • Seamus||

    Whatever you want to say about Constitutional rights, that pretty much shows this guy doesn't understand them. Start with the logical problem, then move on to practical questions.

    Logically, a right is a power vested in an individual to stay the hand of government. In times preexisting government, how can you enjoy a power to stay the hand of government?

    And he's not the only one! Can you believe this idiot Jefferson, claiming that people are endowed by their Creator with rights, even before government has been established, and that governments are logically subsequent to those rights?

    What a maroon.

  • Rev. Arthur L. Kirkland||

    What did Jefferson think of superstition and the gullible?

  • Eddy||

  • Rev. Arthur L. Kirkland||

    He befriended the gullible but he recognized superstition as a childish affliction.

  • Voize of Reazon||

    a right is a power vested in an individual to stay the hand of government

    This is where you go off the path. My rights constrain both the government and Stephen Lathrop from depriving me of my property, and although Stephen Lathrop did not preexist government I am pretty sure analogs of him did.

  • jph12||

    Stephen Lathrop: "Logically, a right is a power vested in an individual to stay the hand of government. In times preexisting government, how can you enjoy a power to stay the hand of government?"

    Declaration of Independence: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

    Hmmm.

  • Don Nico||

    Hard to believe that Montessori pays teachers very well, yet the tuition a Montessori schools is very high. Most likely well outside the reach of the mother.

  • Bruce Hayden||

    I assume that the school gives its teachers a tuition break for their own kids. That was clearly the case when my kid was in private school - at that school, the school employees got a 1/2 tuition break per parent working there, which meant that tuition was free if both parents worked there.

  • Don Nico||

    At Montessori, that still might mean ~$18K per year. Quite high for a teacher's salary.

  • GabrielSyme||

    Not always, my mother teaches at a public Montessori elementary school that is part of the local school district. The rest of the schools in the district are normal though.

  • Eddy||

    I would interpret the phrase beginning "no question is raised" etc. to be a simple description of reality - the case was not brought by homeschoolers, it was brought on behalf of the right to private-school instruction. Thus, the constitutionality of requiring children "to attend some school" was not raised.

    Let's check out another paragraph of the opinion:

    "Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control: as often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. 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."

  • Eddy||

    That logic of the last sentence, IMHO, need not mean compulsory schooling of the building-and-desk variety. Indeed, carrying out their right and duty to direct the upbringing of their children means parents should not be limited by the offerings available in the local public and private schools, which may or may not have educational programs suitable to what the parents believe is best for their children.

    If we assume that the state has an interest in "socializing" kids so they interact with their peers, this interest can be met by homeschool groups, locally and online, or by homeschool kids playing against the schooled kids in sports, etc.

  • Dilan Esper||

    I think the more important issue is the government's interest in a common curriculum.

    For instance, every intelligent person needs to know the theory of evolution, have a basic curriculum of useful sex education, needs to know about the diversity of religions, etc. Homeschooling shouldn't mean the right to keep your kid ignorant.

  • Eddy||

    If you're thinking of the stereotypical homeschool fundamentalist family, I presume they tell their kids about the theory of evolution and the existence of different religions, they simply don't teach the same views on these subjects as the kids would get in public school. It would be more like the view they get in a fundamentalist religious school on the building-and-desk model.

    As to sex education, even the enlightened, advanced thinkers are beginning to realize that getting married before having children is better for children and other living things.

  • Eddy||

    In any case, the connection between sex and reproduction is frequently mentioned in the Bible, so I doubt fundamentalists would miss it.

  • bernard11||

    I don't know. It's tempting to skip all those "begats," even for a non-fundamentalist.

  • Dilan Esper||

    Eddy, evolution is a fact. Every child has a basic human right not to be lied to by adults who want to keep them ignorant regarding the facts of human origin.

    And every child has a basic human right to learn about sex. On sex, I don't really care if the parents tell the kid not to have it-- that's not the problem. The problem is not knowing how effective a condom is, not knowing what forms of sex are available, not understanding what it means to be gay or bisexual, etc.

    Unfortunately there are religious nutcases out there who believe in an invisible man in the sky who wants to keep humans ignorant. And while they can certainly keep themselves ignorant. to impose those views on children is child abuse.

  • Eddy||

    "Eddy, evolution is a fact."

    Why are you telling me this, I'm not a fundamentalist.

    Your criticism applies to fundamentalist private schools, not just homeschooling. The logic of your position means government curriculum monitors in private-school classrooms to make sure all the correct positions are being taught.

    So you're proving too much.

    If we're going to enforce a child's right not to be brainwashed, there's plenty of dubious material in the curricula of public schools to warrant attention.

    For example, try to include material in the public-school curriculum which discuses the implications of evolution for human beings in the matter of, say, sexual differentiation. You'll be accused of hate speech in a minute.

  • Eddy||

    What else should we monitor private schools for, if the government gets to insert supposedly essential material in the private-school classroom?

    Presumably the government should require private schools to inculcate American patriotism. Make sure children know who George Washington was, and Alvin York, and make sure they're told to be ready to give their lives for their country if called upon.

    Why leave it to private schools to set their curricula - that simply leaves too much room for hippie schools to talk down this country and raise a generation of kids without pride in America. :(

    /sarc

  • James Pollock||

    "What else should we monitor private schools for, if the government gets to insert supposedly essential material in the private-school classroom? [...] Why leave it to private schools to set their curricula..."

    You're confusing setting benchmarks for setting curriculum. These are not interchangeable. You can objectively determine whether a student can integrate the area under a curve, or speak French, or identify the structure of the United States government, without specifying the exact method to be used to learn those skills.

  • Eddy||

    "You can objectively determine whether a student can integrate the area under a curve, or speak French, or identify the structure of the United States government"

    Yes, you can test students (including public-school students) for that. And if a private school student shows results which are worse than one might expect for a similarly-situated public-school student, you can get back to me about the government intervening in parental choice in education.

  • James Pollock||

    "The logic of your position means government curriculum monitors in private-school classrooms to make sure all the correct positions are being taught."

    Add logic to the things that need to be taught early.

    Requiring an education to contain 'X' doesn't require monitors anywhere. It requires that children recite on command. Now, you can choose to complain about THAT if you want (it's a popular hobby).

  • Eddy||

    Without government monitors, how can you be sure a private- or home- schooled student isn't being taught about invisible men in the sky, or the value of premarital continence, etc?

    You can't enforce the standards you defend without monitoring.

  • jph12||

    "Every child has a basic human right not to be lied to by adults who want to keep them ignorant regarding the facts of human origin."

    Screw those indigenous tribes in the Amazon that have never been contacted by outsiders. They are violating the basic human rights of their children. We need to swoop in and start teaching them about evolution right now. And condoms. How can those poor kids grow up not knowing how to use a condom?

    Of course, they probably have a basic human right to access to contraceptives as well, so we probably need to make sure there's a CVS at every village.

  • DjDiverDan||

    There are several online programs for K-12 education, a few that are tuition-free, several of which include a number of AP and honors courses. Using these programs, a home-schooling parent really doesn't need an education degree or experience teaching, just the ability to make certain that the child is actually following the online protocols, watching the lectures, reading the assigned materials, taking the online tests, etc. Home schooling in the age of internet technology, with video on demand, instant access to textbooks, instant feedback, is a lot easier than it was 40 years ago.

  • apedad||

    Wow DJ--I think that's the first time you've said anything rational--but of course you entirely miss the point which is whether parents have the right to teach their children as they see fit.

    Absolutely no one would have a problem if parents put their child through an accredited program as you described.

    The problem arises when parents wish to teach the Bible (Torah, Koran, etc.), instead of STEM.

    Are incapable of teaching critical thinking.

    Cannot present alternative theories.

    Then we end up with poor citizens who simply cannot manage their own lives or our society.

  • DjDiverDan||

    "Then we end up with poor citizens who simply cannot manage their own lives or our society."

    You mean like most Democrat voters? Yeah, that would be terrible.

  • Rev. Arthur L. Kirkland||

    Your stale, intolerant preferences are doomed in modern America, Dan.

    Losing culture wars and being on the wrong side of history have consequences.

  • James Pollock||

    "Home schooling in the age of internet technology [...] is a lot easier than it was 40 years ago."

    For people with access to broadband Internet, and money to buy Internet-connected devices, it is.

  • Cloudbuster||

    I don't understand why this would complicated for a federal court at all. The Constitution grants the federal government no authority over education, so this would be a clear 10th amendment case where the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States. Whether the state, in turn, can ban homeschooling would depend on that state's constitution.

  • David Nieporent||

    so this would be a clear 10th amendment case where the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States.

    That is not what the 10th amendment says.

  • Enemy of the State||

    It isn't? OK, what does the 10th in fact say?

  • Voize of Reazon||

    "to the States, or to the people."

    I hadn't really noticed before, but a strict textual interpretation would be that powers prohibited to the States are not available to the States nor to the people. I'm not aware of any analysis along these lines though.

  • David Nieporent||

    It isn't? OK, what does the 10th in fact say?

    Well, hmm.

  • FrankInFL||

    This is clearly a 9th amendment issue. Unless a state's constitution explicitly grants power over education, the 9th would seem to apply: the fedgov doesn't have the power, so the right remains with the people; ditto the state.

    An analogous analysis :-) could be derived from the 10th amendment.

  • Enemy of the State||

    Yes, but the SCOTUS hates the 9th and only slightly less so the 10th. Roe should have been decided under the 9th for example instead of appealing to some vague "right to privacy" found "emanating from its penumbras"....

  • Enemy of the State||

    Show me the section of the US constitution that gives the federal government any role at all in the provision, funding or supervision of education at any level...

  • James Pollock||

    Congress' appropriation power isn't as limited as the lawmaking power of the federal government.
    The Constitution authorizes Congress to pay all debts of the United States, without placing a limit on what debts they may create.
    This is why the federal government can bribe the states to do what it wants them to do even when it can't outright order them to do it.

  • CJColucci||

    Such modest substantive federal regulation of education as there is is authorized by the Spending power. States can take federal money with conditions or go their own way without it. Some issues that arise in the context of education are not really issues of educational regulation, but an application in education of a broader power. A state cannot decide to educate only its white residents and not its black ones. That is straightforward Equal Protection. But you can't use Equal Protection to claim, for example, that the curriculum provided to white and black alike sucks. I litigated that very issue over 20 years ago.

  • James Pollock||

    The right of the parent to direct the education of the child, vs. the child's right to receive a good education. When the state intercedes to protect the child's right(s), this necessarily involves the state formulating and expressing an opinion as to what a "good education" would include.

    Ultimately, the goal is to produce reasonably healthy, self-sufficient adults

  • ReaderY||

    I don't think Pierce v. Society of Sisters extends as far as a constitutional right to home-school. I agree that the (limited) religious right to remove children from school entirely recognized in Yoder v. Wisconsin suggests one could hone school under the same circumstances where one needn't school at all, but that doesn't extend to a general, unlimited right.

  • OldSchool||

    "I'm not positive that it should be recognized as a constitutional right"

    More importantly, and specifically, the right to homeschool is an inalienable right. The right comes from God and preceded government. Children belong to parents, not to the state. To suggest that the state can deny parents their inalienable right to teach their children at home is to assume the supremacy of the state. A position antithetical to liberty.

  • CJColucci||

    Leaving aside the hearsay problem concerning the source of a right to homeschool, why would it be "inalienable"?

  • LifeStrategies||

    "Pierce itself noted that:
    "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, "

    I'm wondering how anyone can believe that many of the current teachers in the government education system are "of good moral character and patriotic disposition'. With the enormous number of teachers and schools promoting the incomprehensible Common Core system and advocating all sorts of socialist Alinsky ideas, they are definitely NEITHER of good moral character NOR of patriotic disposition...

  • David Wagner||

    My "Homeschooling as Constitutional Right": https://tinyurl.com/y8z43s6o

    Needs fleshing out, but makes point that pre-1900 state courts mostly viewed public schools as resources that parents could use for their kids on a smorgasbord basis, NOT as loci of legal obligation commandeering kids during school hours. Also ventures a "not that there's anything wrong with that" approach to Meyer-and-Pierce's Lochner roots.

  • David Wagner||

    Well, I see Chief Justice Dillard didn't cite me, but he's given me a mother lode of biblio for the next iteration of my article!

  • David Wagner||

    Well, I see Chief Justice Dillard didn't cite me, but he's given me a mother lode of biblio for the next iteration of my article!

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