December 17, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
My post on Friday was on that gift that keeps on giving, John Bolch. As usual, he got a lot wrong, most significantly his pretense that, in some way, parents’ rights and children’s welfare are opposed. In the overwhelming majority of cases, they’re not. Children need two parents in their lives and, with rare exceptions, both are fit to care for them. So parents’ rights to be parents and children’s well-being tend very strongly to be much the same.
Moreover, I pointed out that, whether for good or ill, in the United States, parents’ rights are considered “natural rights,” i.e. preceding the writing and ratification of the Constitution. And yet, for those opposed to children maintaining meaningful relationships with both parents following divorce, parents actually asserting those rights – rights that the Supreme Court has called “far more precious than property rights – is somehow wrong. We see this argument frequently and it never makes any sense. Why have rights if we don’t assert them?
But today, I thought I’d delve a bit deeper into that subject. Before, I’ve always tossed it off as the silliness it is, but the misguided nature of the anti-parents’ rights argument goes deeper than that.
As everyone knows, the notion of individual rights was originally set up as a limitation on the power of government. Now, at the time of this country’s infancy, the matter of parental rights was not much in anyone’s mind. Parents took care of kids. They did so well or not, but few people thought the government could or should try to do the job better.
Indeed, for at least hundreds of years prior to the ratification of the Constitution, governments tended strongly to avoid children if at all possible. That was because children cost money to raise and governments were eager for parents to bear that cost.
If parents should die or become disabled and there were no relatives to take in a child in need, the local community grudgingly made some provision for them. But again, orphanages with people to run them aren’t free and so governments did their best to fob the little ones off on someone else. Still, a few of them found themselves in the not-too-loving embrace of the town or parish.
That’s why workhouses came into being. If communities had to provide for children, the children could defray the cost themselves by dint of their own labor. Think Oliver Twist.
The cost of raising children was also why governments were so enthusiastic about marriage and looked askance at unmarried women and men. Unmarried men in particular were thought to be a danger due to their assumed propensity for impregnating unsuspecting young women and then disappearing leaving mother and child unsupported.
The relative absence of governmental involvement in children’s care continued until the late 19th century, but gradually began to increase. That of course was due to many factors, not least among them the incompetence and brutality of the “private sector.” For example, well-intentioned organizations morphed from caring for orphans to snatching random children (orphaned or not) off the street and having them adopted for a fee. That financial incentive led to child abuse and greater governmental oversight of children and families.
The point being that, as seems to be invariably the case, governments expanded their power over parents, children and families. It’s a process that continues to this day and seems to be accelerating. The overreach of child protective services is well-documented and more examples of same arrive daily. The federal government incentivizes states to take children and have them adopted. And of course the adoption process is avidly encouraged by things like Putative Father Registries that allow children to be adopted with neither the knowledge nor the consent of their unmarried fathers.
So, unlike two centuries ago, both federal and state governments now enthusiastically involve themselves in family life and children’s upbringing. Not unusually, they do a ham-fisted job of it. After all, a federal judge in Texas wrote an opinion just 18 months ago that included the judicial finding that foster kids exit foster care at age 18 in worse shape than when they entered it. Judge Janice Jack was commenting on Texas, but she could have been writing about almost any state in the nation.
All of which is to say that, whatever parental rights were in 1789, they’re more valuable than ever today. The dramatic expansion of state power over families makes them so. We should be striving for less governmental intervention into family life, not more, and parents who assert their rights to act as caregivers to their children place themselves on the right side of that issue.
Not only are parental rights and children’s interests aligned, but the assertion of parental rights, in whatever context, serves not only the child in question, but all children in the jurisdiction. It does so by opposing government that typically does a bad job of childcare and supporting parents who typically do better.
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