A Right to Raise One’s Own Children?

GNI Staff

The US Constitution emerged in the late 1780s as a document based on natural rights principles honed during the Enlightenment. In its brief text, it commits free-standing inalienable rights to paper. At the time it was written, it appears some inalienable rights were seen as so obvious they did not need to be written down. One example is the right to raise one’s own children. Unfortunately, the US Constitution does not currently contain a clear statement of the right to parent, meaning that a “right to parent” amendment might be one of the most pressing—and easily agreed upon—additions to the Constitution in the future.

Since the early 20th century, courts in the US have largely presumed that a right to parent exists even though there is no textual backing for it in the Constitution. Meyer v. Nebraska, a 1923 Supreme Court case held that a state law prohibiting education in a minority language violated the Due Process Clause of the Fourteenth Amendment. In dicta, the case spoke of a parent’s right to parent his or her own children. Pierce v. Society of Sisters two years later invalidated an Oregon law that required all children to attend public school. However, since the Supreme Court’s splintered decision in 2000 in Troxel v. Granville parental rights are in a state of uncertainty.

Justice Antonin Scalia dissented in Granville, noting the conflict between his own view of inalienable rights and the Constitution’s plain text:

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming anyone of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people…I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

Across the political spectrum, some form of strong parental rights are probably an area of general agreement. Parental rights can never be absolute, of course. Parents cannot neglect or abuse their children. But nor should the government be able to take away children from their homes on a whim. Some inalienable rights seem so obvious they are never written down. That is a mistake, leaving open the possibility that the government could take over parenting of children in any circumstance and dispossess parents at any time.

Reprinted with permission from Global North Institute