The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child - Hardcover

Shulman, Jeffrey

Hardcover

ISBN 10: 0300191898 ISBN 13: 9780300191899

Publisher: Yale University Press, 2014

Synopsis

In this bold and timely work, law professor Jeffrey Shulman argues that the United States Constitution does not protect a fundamental right to parent. Based on a rigorous reconsideration of the historical record, Shulman challenges the notion, held by academics and the general public alike, that parental rights have a long-standing legal pedigree. What is deeply rooted in our legal tradition and social conscience, Shulman demonstrates, is the idea that the state entrusts parents with custody of the child, and it does so only as long as parents meet their fiduciary duty to serve the developmental needs of the child.
 
Shulman’s illuminating account of American legal history is of more than academic interest.  If once again we treat parenting as a delegated responsibility―as a sacred trust, not a sacred right―we will not all reach the same legal prescriptions, but we might be more willing to consider how time-honored principles of family law can effectively accommodate the evolving interests of parent, child, and state.

About this title

About the Author

Jeffrey Shulman teaches constitutional family law and legal writing at Georgetown Law. He lives in Frederick, MD.

Excerpt. © Reprinted by permission. All rights reserved.

The Constitutional Parent

Rights, Responsibilities, and the Enfranchisement of the Child

By Jeffrey Shulman

Yale UNIVERSITY PRESS

Copyright © 2014 Jeffrey Shulman
All rights reserved.

ISBN: 978-0-300-19189-9

Contents

Acknowledgments, ix, 
ONE Sacred Trust or Sacred Right?, 1, 
TWO Parenting as a Sacred Trust, 23, 
THREE Parenting as a Sacred Right, 93, 
FOUR Toward Constitutional Parenthood, 136, 
CONCLUSION The World All Before Them, 224, 
Notes, 229, 
Index, 323, 

CHAPTER 1

Sacred Trust or Sacred Right?

Some natural tears they dropp'd, but wip'd them soon;
The World was all before them, where to choose
Thir place of rest, and Providence thir guide:
They hand in hand with wand'ring steps and slow,
Through Eden took thir solitarie way.

—John Milton, Paradise Lost

Edward Walker was a minor when, in 1838, he went to work at sea. Upon his return, his father, Joseph Walker, claimed Edward's wages for his own use. Joseph made what charitably might be called a private settlement with the owner of the Etna, the ship on which Edward had served. Edward disputed the settlement, claiming the wages as his own. The federal district court made note of the general proposition that a father was "entitled to the earnings of his child by virtue of his paternal power." On this ground, Joseph had the right to settle matters on such terms as pleased him. The general proposition, however, was not as legally dispositive as he would have hoped.

The court distinguished between the rights and duties of a father. While a father's duties were "indissolubly attached to the paternal relation," the same could not be said of a father's rights. The rights of the father, according to the court, are given to him by the state to enable him to fulfill his parental duties ("to provide for his child a home, to protect, to maintain, and to educate him according to the measure of his ability"), and, as a more concrete compensation, the father is allowed "to take the fruits of his child's labor." But this paternal power is not a "sovereign and independent authority." It is not, to use the court's comparison, like the patria potestas enjoyed by the father in ancient Rome, "whose law held children to be the property of the father, and placed them in relation to him in the category of things instead of that of persons." This sovereign paternal authority, the court declared, "has never been admitted by the jurisprudence of any civilized people." Rather, the father holds only a contingent authority, "subject to the restraints and regulation of law," contingent because it is "inseparably connected with the parental obligations, and arises out of them." In short, paternal power rests on the fulfillment of paternal duty. Relying on a deep pool of legal theoreticians, treatise writers, and jurists, including "[t]he soundest and most esteemed commentators upon the common law," the court affirmed what, by the time of this dispute, was a well-settled legal precept: The power of the parent, because it derives directly from the duty to benefit the child, is limited in scope and duration. It is only as great as is needed to secure the child's welfare: "It is not a power granted to the parent for his benefit, but allowed to him for the benefit of the child, and it ceases when the faculties of the child have acquired that degree of maturity, that it may safely be trusted to its own resources. When, therefore, the parent abuses this power, or neglects to fulfil the obligations from which it results, he forfeits his rights."

For, at bottom, the child does not belong to the parent. The court stressed that Edward, like all children, was endowed with a social nature and was destined for the enjoyment of a social life. As a member of what the court called "the human family," Edward was invested — endowed by birthright, as it were — with all the rights that belong to other members of this universal family. The court explained,

The Creator of man, in giving to [the child] a social nature and endowing him with those qualities which fit him for the enjoyment of social life, has imposed upon the parent, as one of the conditions of his being, the obligation of providing for his offspring while they are incapable of taking care of themselves. But his children are not on that account born slaves. They do not become the property of the parent. As soon as a child is born, he becomes a member of the human family, and is invested with all the rights of humanity.

Thus, when the parent fails to fulfill his duty, when he fails to honor the human rights and social nature of the child, the "protecting justice of the country" will interpose and deprive him of his authority. The court was "not aware of any doubt" that the state could take children from their parents and place them "under the care of persons proper to have the control of them, and to superintend their education." Indeed, it was the legal and moral responsibility of the court "to remove a guardian who is unfaithful to his trust."

It is commonly assumed, by academic and lay audiences alike, that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete and anachronistic. Cases like that of Edward Walker suggest that if by "fundamental" we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. What is deeply rooted in our legal traditions and social conscience is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. Whether custodial authority was called a power or a right, it was made contingent on the welfare of the child and the needs of the state. "[T]he right of parents, in relation to the custody and services of their children," Joseph Story wrote in 1816, "are rights depending upon the mere municipal rules of the state, and may be enlarged, restrained, and limited as the wisdom or policy of the times may dictate." Custodial authority, maintained the nineteenth-century libertarian treatise writer Christopher Tiedeman, "is not the natural right of the parents; it emanates from the State, and is an exercise of police power."

These assertions of the ordinariness of parental authority are not isolated instances. Reviewing the case law of the nineteenth century, Lewis Hochheimer, whose treatise on the law of child custody was a familiar reference for courts in the late nineteenth and early twentieth centuries, concluded that "[t]he general result of the American cases may be characterized as an utter repudiation of the notion, that there can be such a thing as a proprietary right of interest in or to the custody of an infant." It is true of our legal past—as it is true today—that claims of right (natural and civil) were advanced in support of parental power. But, as Hochheimer tells us, the prevailing legal current, driven by the equitable force of trust principles, swept away such "narrow contentions": "The entire tendency of the American courts is, to put aside with an unsparing hand all technical objections and narrow contentions whereby it may be attempted to erect claims of supposed legal right, on a foundation of wrong to persons who are a peculiar object of the solicitude and protecting care of the law."

Traditionally, for both legal scholars and jurists the very word "trust" was something of a linguistic charm to ward away rights-thinking. For James Kent, the duty to provide for the maintenance and education of the child is "a sacred trust"; it is the "true foundation of parental power," the source of the authority that the law "has given" to parents. The parent is "absolutely bound" to serve the child. For Story, parents are only "entrusted with the custody of the persons and the education of their children" and only as long as they properly take care of the child. "Why," Story asks, "is the parent by law ordinarily entrusted with the care of his children?" His is a simple answer: "Simply, because it is generally supposed, that he will best execute the trust reposed in him; for, that it is a trust, and of all trusts the most sacred, no one can well doubt." For Hochheimer, proprietary principles were a legal remnant of an antiquated family law; in their place the law had substituted "the idea of trust as the controlling principle in all controversies in relation to such custody." "In true legal conception," he writes, "[the parent] is simply the agent or trustee of the government." For Tiedeman, "[t]he parent has no natural vested right to the control of the child"; parental control is "in the nature of a trust, reposed in [the parent] by the State ..., which may be extended or contracted, according as the public welfare may require." Likewise, and quite early in our juridical history, courts were equally committed to the word and the concept. By the mid-nineteenth century the jurisdiction of the courts "to remove infant children from the custody of their parents, and to superintend their education and maintenance" was not only "well established" but also considered "indispensable to good order and the just protection of society." This jurisdiction "proceeded] upon the theory that the right of guardianship is a trust for the benefit of the child, and the parent is not at liberty to abuse it."

On this basis, the Etna court was fully prepared to protect the interests of Edward Walker against the claims of his father. When parents fail "to fulfil the obligations from which [parental power] results," the court observed, the state — as parens patriae, as parent of the country — has a "deep interest" to ensure that its grant of authority is not abused. Joseph Walker, it turned out, had not fulfilled the responsibility entrusted to him, and the court awarded Edward his just compensation.

Under a trust model of parent-child relations, biology does not beget rights. It begets responsibilities. The trust model is built on the Lockean principle that it is the child who has a fundamental right (what William Blackstone called a "perfect right"): the right to appropriate parental care, including the entitlement to an education that will prepare the child for eventual enfranchisement from parental authority. To Locke, the "right of Tuition" is "rather the Priviledge of Children, and Duty of Parents, than any Prerogative of Paternal Power." (It is a noteworthy piece of American legal history that the child's entitlement to a proper education and the consequent affirmative duty of the state to provide a proper public schooling—a striking break with negative constitutionalism — have long been enshrined in our states' political charters.) What biology begets is a duty to ensure the child's best interests. "The terms 'right' and 'claim,' when used in this connection [that is, the custody of children]," declared Hochheimer, "according to their proper meaning, virtually import the right or claim of the child to be in that custody or charge which will subserve its real interests." In this connection, then, custodial authority is not a right at all. It is, Hochheimer tells us, "a grant of power flowing from the state, a portion of the state's protective care and guardianship."

The idea that, historically, American law embodied a strict regime of parental rights is not easily dislodged. As formidable a scholar as Martha Fineman has written that, "[historically, fathers were entitled to possession of their children.... In essence, fathers had an absolute right to their children, 'owning' them as if they held 'title' to them." Yet the American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. "That the father had any such absolute right to the care and custody of his children," that the state lacked the authority to "control the conduct of the father in the education of his children" — these propositions, Story wrote, "would strike all civilized countries with astonishment." This confident delimitation of the parent's "ordinary" rights is nowhere better seen than in child custody cases, where courts challenged, first, paternal authority and, then, parental control of the child generally. At common law the father was entitled to the value of his minor children's labor and services, a valuable asset, no doubt; but he was entitled to the benefit of the child's labor "in order the better to discharge his duty." Custody courts would not presume that, in fact, the parent was appropriately fulfilling the demands of his role; instead, they would "act according to sound discretion," consulting the child "if it be of sufficiently mature age to judge for itself." Where the child was too young to choose for itself, it was a judicial commonplace that "the real interest of the child is the principle which must govern." The parent retained custody of his — or, as the law evolved, her — minor children, but this privilege was granted on the presumption that parents act in the best interests of the child — and this was a rebuttable presumption. The parental entitlement was good only "so long as [the parent] discharges the obligation imposed upon him by social and civil law." It is sometimes argued that the paramount right of the parent to direct his child's upbringing without state intervention, absent a showing of harm, was so basic as not to need express constitutional protection. In fact, what was so basic was parental obligation — "[T]he obligation of parental duty is so well secured by the strength of natural affection," as Kent wrote, "that it seldom requires to be enforced by human laws" — and American custody courts, only too content to compare their law with the harsh and technical rules of the English cases, had little taste for a harm standard.

Far from being absolute, the right of the parent was not even the custody courts' primary consideration. "The true view," as one mid-nineteenth-century court put it, "is that the rights of the child are alone to be considered, and those rights clearly are to be protected." The very idea that parents have rights as parents was called into question. The New York Court for the Correction of Errors was not alone when it declared that "there is no parental authority independent of the supreme power of the state. But the former is derived altogether from the latter." If parental authority is derived from the state, the parent does not obtain rights merely by virtue of being a parent. "It is an entire mistake," Story concluded, "to suppose the court is at all events bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody." Similarly, the Supreme Court of Pennsylvania: "[T]he right of parental control is a natural, but not an unalienable one."

Rather, the parent obtains authority, however it is styled, over the child by virtue of acting as a parent. Indeed, it is the child's entitlement—the child's right "to be surrounded by such influences as will best promote its physical, mental, and moral development"—that was thought to be in the way of a natural vested right. In contrast, the right of the parent "to surround the child with proper influences [was] of a governmental nature," in the sense that parental authority over the child was considered a benefit granted by the state in return for parental care of the child. This benefit was subject to the principle — again, the debt is to Locke — that what is due the child is defined, in a general sense, by basic developmental needs and, more particularly, by the developmental needs of the child destined from birth to be a member of a liberal constitutional order. Accordingly, the metes and bounds of parental duty were not considered a matter solely for private determination. (Nor, for that matter, were the legal parameters of filial duty.) Parents in a liberal society, it was assumed, have no right to parent as they see fit.

(Continues...)

Excerpted from The Constitutional Parent by Jeffrey Shulman. Copyright © 2014 Jeffrey Shulman. Excerpted by permission of Yale UNIVERSITY PRESS.
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Edition details

• Publisher: Yale University Press
• Publication date: 2014
• Language: English
• ISBN 10: 0300191898
• ISBN 13: 9780300191899
• Binding: Hardcover
• Number of pages: 224