Mary Ziegler (University of California, Davis – School of Law), Maxine Eichner (University of North Carolina School of Law), and Naomi Cahn (University of Virginia School of Law) have posted The New Parental Rights Absolutism (Stanford Law Review, forthcoming) on SSRN. Here is the abstract:
A new movement has mobilized to establish that federal and state constitutions give parents virtually complete authority over their children. Advocates for this position argue that parents’ rights, like other fundamental constitutional rights, are entitled to strict scrutiny and other maximal legal protections. They also contend that recent precedent has departed from our history and tradition by placing too much weight on the wellbeing of children— and that any limit on parental authority should be presumptively unconstitutional. The position has emerged in conflicts about gender-transition at school, access to contraception, abortion, and mental-health care, and physical discipline of children, but the stakes are even higher. Having already indicated support for this position, the Supreme Court has recently accepted a new major case, International Partners for Ethical Care, Inc. v. Ferguson, for review. Notwithstanding the claims of parental rights absolutes, existing precedent provides guidance on how the Court should resolve emerging conflict about parental rights.
The new movement that we call parental-rights absolutism suggests that sweeping parental rights are consistent with Supreme Court precedent and the nation’s history, and traditions. This Essay refutes these claims about the nation’s past. It shows that the early common law in the United Kingdom did not recognize comprehensive parental rights, and accorded even the protections it did recognize only to fathers of a particular race and class, hardly a precedent modern law should seek to follow. By the time of the ratification of the Fourteenth Amendment, courts, legislatures, and treatises had redefined who held parental rights –broadening them to cover both fathers and mothers—and clarified that those rights were not unlimited. Because parents’ rights primarily served as a vehicle for protecting children’s wellbeing, courts across a number of legal contexts limited parental authority to serve the best interests of children. By focusing on common-law cases, we show that our tradition always viewed parents’ own liberty interests as limited and subject to the power of state. Rather than treating any limit on parental power as unconstitutional, our tradition both recognized the importance of parental rights and sometimes balanced them against the state’s own authority to support the wellbeing of children.
The present-day project of parental-rights absolutism, this Essay demonstrates, emerged not in the Founding or the Reconstruction era but far more recently, in response to the mobilization of a voting bloc that activist Paul Weyrich would call the Christian Right. As faith-identified conservatives sought to forge a cohesive legal movement, aligned lawyers looked for causes that could unite constituents across theological and legal lines. A fight for parental rights proved to be an important strategy in the creation of a cohesive movement in and beyond the 1990s. Significantly, these movement actors invoked history and tradition to justify a maximalist approach to parental authority that courts had long rejected in favor of one that privileged children’s wellbeing.
Parental-rights absolutism must thus be judged on its own merits, not simply defended as an extension of history and tradition. By threatening to invalidate rules on everything from child labor to child marriage, parental-rights absolutism would harm children. Courts can better respect our tradition, precedent, and current values by recognizing that parents generally have broad decision-making power because they serve children’s wellbeing. When the welfare of minors is better served by vesting decision-making power with the state or minors, though, parental rights are appropriately limited. Finally, we argue that struggles over parental rights reinforce the extent to which history and tradition is itself a popular constitutional project, one through which movements and courts alike forge claims about constitutional memory.
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