The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Liberty and Parental Rights
[I'm putting together a post on a specific parental rights question, and it reminded me of this post of mine from 2011, which I thought I'd rerun.]
Some comments on recent posts have suggested that libertarians should support a broad notion of parental rights. I haven't written at any length on parental rights (except as to the special case of parental free speech rights), and my thinking on this is far from definite; and of course I surely can't speak for libertarians generally. But as somehow who is in many (though by no means all) matters a presumptive libertarian, I thought I'd say a bit about this. Note that I'm speaking in this post about what I think the right rules ought to be, not about what we should understand our Constitution to say with regard to this question.
1. To begin with, though parental rights are seen by the law as part of parent's "liberty," it's an unusual sort of liberty. The strongest case for liberty arises when people seek the right to do what they please with their own bodies, labor, and property, and the bodies, labor, and property of consenting adult partners (whether sexual, familial, business, or otherwise).
But parental rights are the rights to control someone else's actions. My child is not me. He is not my property. That I have the right to, say, alter my own body (or hire someone to do it for me) or to choose spiritual healing over traditional medical treatment doesn't tell us much about whether I should have the right to alter another person's property, or deny another person medical treatment—even if the other person is my minor child.
2. Moreover, parental rights don't just involve the government refraining from action (e.g., by not arresting me for false imprisonment when I physically restrain my child, the way it would if I tried to do that for an adult). Rather, they sometimes involve the government taking affirmative coercive steps to support parents' rights.
The law often makes it a crime to entice minors from their parents, even when the minors are happy to go. It lets police forcibly return runaway minors. Some statutes threaten children "who persistently or habitually refuse[] to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian" with being adjudged "ward[s] of the court." And some court decisions go so far as ordering people not to contact a particular minor. See Brekke v. Wills (Cal. App. 2005) (upholding injunction barring sixteen-year-old girl's ex-boyfriend, whom mother considered bad influence, from contacting the girl, partly on grounds that injunction helped protect "[mother's] exercise of her fundamental right as parent to direct and control her daughter's activities"). If parents are legally allowed, for instance, to decide not to provide a child with certain medical treatment, a doctor who wants to provide such treatment would be legally barred from providing it.
Thus, parental liberty involves (A) suspension of the normal rules—which most libertarians approve of—barring one person from coercing another, plus (B) special rules that outright forbid people from certain actions with other people's children. This is pretty far from things such as liberty of speech, sexual liberty (whether or not one thinks such liberty should be constitutionally protected liberty), liberty of contract, and so on.
So the libertarian case for parental rights has to rest on something other than the basic "my body, my labor, my choices" libertarian perspective. To be sure, the parent may say "my child," but that's a different sense of "my" than in "my body." Someone's being "my brother" or even "my spouse" doesn't give me rights over that person. If someone's being "my child" gives me rights over the child, there needs to be some better explanation than "liberty" in the abstract.
3. My sense is that the strongest such explanation, at least from a libertarian perspective, should stem not from claims about parents' inherent liberty to control their children's upbringing, and more from claims about what's best for children given the limitations of government. The argument would go something like this: Children, up to a certain age, need someone to make decisions for them, with an eye towards putting them in the best position to exercise their liberty once the children grow up. Someone needs both to shield them from dangers that may keep them from surviving to adulthood (disease, accidental death, starvation, criminal attack), and to positively provide them the things they need (education, self-control, and the like).
That someone can be the parents, or some interested third party—in principle, perhaps a family member or someone else, but (systemically) likely government officials. But parents, generally speaking, are much more likely to love the child and to know the child than any third party would. There are good reasons to suspect this from an evolutionary biology perspective, but beyond this, that is generally what we see in the world around us: Parents generally spend tremendous amounts of time, money, and effort on their own children, much more so than any third party is likely to do (including we taxpayers, if asked to support others' children).
The trouble is that we know that sometimes parents make decisions that harm their children a great deal. Sometimes it is because the parents are mentally unstable, drug-addled, unable or unwilling to control their anger or lust, or greedy for what their children could provide for them (e.g., by putting the children to work in particular ways that might interfere with the children's education and thus harm the children's future career prospects). And sometimes it is because the parents hold moral or religious views that we think are badly wrong: for instance, if the parents insist on cutting off their daughters' genitals, or refuse to provide life-saving medical treatment to their children.
To be sure, the parents may disagree, for instance thinking that their prayer is more temporally effective than medical treatment, or that even if it is less effective temporally, it's better to save the child's soul even at the risk of the death of the body. But we can't just fall back to "all parents have their own views, and who are we to say that these parents are wrong?" The parents, after all, are deciding not about their own bodies and lives, but about the bodies and lives of other human beings. We need not stand by while those human beings are seriously hurt (in our view), just because the parents think that what they're doing is good.
Moreover, the question of course isn't whether parents should always decide what's best for their children or the government should always decide. Rather, the question is how to combine the possible decisionmakers (or at least that's the question once we reject the extremes of letting parents kill their children or just taking children away from their parents to be raised by government officials—the Rome and Sparta options, to vastly oversimplify history here).
Should the rule, for instance, be
- That parents' decisions always prevail unless the legal system concludes that there is serious likelihood of physical harm to the child (with physical harm defined by the majority view)?
- That they prevail unless the legal system concludes that there is serious likelihood of physical or psychological harm to the child?
- That they prevail unless the legal system concludes that the decisions are against the child's best interest?
- Some mixture of these rules, perhaps depending on the degree of likely harm, the likelihood that the parents' decisions about those particular activities would be unsound, and the likelihood that government officials' decisions about those particular activities would be unsound?
My tentative inclination is to say that there should indeed be a pretty strong presumption in favor of parental control, precisely because on balance parents will usually do a much better job than government officials. But I'm inclined to accept that the presumption would be rebutted more often than when someone is seeking only the right to control himself, and not another human being.
Finally, note that I've spoken here only of libertarian arguments. I have not discussed conservative arguments based on a strong presumption in favor of preserving our particular society's longstanding traditions. And I have also not discussed the particular utilitarian arguments that stem from recognizing that most parents actually want to raise their children, and to make decisions for their children, and thus derive utility from having broad parental rights and disutility from having those rights restrained. I'm inclined to say that this particular utilitarian analysis ought not count for libertarian purposes, though perhaps I'm mistaken on that score.
