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Children's Rights versus Parents' Rights: Case Studies

To review: While I certainly concur with the overwhelming majority of my fellow libertarians that there is a presumptive right to raise one’s children as one sees fit, I sometimes get into trouble for insisting that this presumption is rebuttable. Whatever the “right to raise one’s children” may be, it simply cannot include a “right to abuse or neglect one’s children.” Discerning where to draw the line is a challenge, one that I take up only reluctantly. (One particularly thorny example is homeschooling: I’m for it, except when I’m against it.)

Nevertheless, some items crossed my aggregator recently that together illustrate the difficulty in trying to craft a position that is simultaneously “libertarian” and absolutist.

First: Libertarians would all no doubt agree that children should not be required to recite, or even stand during, the Pledge of Allegiance while in public school. That is an unambiguous right under well-settled law: West Virginia v. Barnette, 319 U.S. 624 (1943).

But exactly whose “right” are we talking about?

Here … the refusal of students to participate in the Pledge — unless their parents consent — hinders their parents’ fundamental right to control their children’s upbringing. The rights of students and the rights of parents — two different sets of persons whose opinions can often clash — are the subject of a legislative balance in the statute before us. The State, in restricting the student’s freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect. … Should a parent request that his child not recite the Pledge — even where the child wishes to recite — the statute provides that the school must excuse the student.

Read that last sentence again: the “right to refuse to recite the Pledge” is not the student’s at all, but only the parents’. If the parents say “recite,” then the student must comply, and the school must coerce — the “right” is not hers at all. And even the reverse is true: If the parent says “do not recite,” then the school must take affirmative steps to bar the student from reciting; she has no say in the matter whatsoever.

On the plus side, this case was a facial challenge to compulsory standing during the Pledge (even if not to recite it). The court left open, indeed emphasized, the possibility of future “as applied” challenges, and specifically mentioned that its reasoning was especially robust in the context of “elementary and middle school students” (i.e., but possibly not for older students who might be entitled to make their own decisions). Still, the question of where the right of the parent to control ends and the right of the child begins should not be so cavalierly treated as either obvious or absolute. Indeed, as a certain other group of pro-child libertarians would emphasize, one can easily and persuasively argue that the younger the child, the more urgent is the elevation of his rights over the “rights” of his parents.

Like I said: Thorny. Which is fine, as long as we acknowledge it as such.

The case is Frazier v. Winn, No. 06-14462 (11th Cir., July 23, 2008) (PDF – 14 pages).

So the “right to raise your child as you see fit” seems to trump your child’s rights, at least in some circumstances. But what about the “right to make your child as you see fit“?

Using preimplantation genetic diagnosis (PGD), parents can now screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent and increasing trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.

[C]hildren should be able to successfully sue their parents in some instances. Children have a moral right to an open future and tort law should protect this moral right where parents’ preimplantation genetic choices limit a child’s ability to pursue a variety of different life paths.

Variations on this theme pepper TV dramas: I know of at least two programs concerning the issue of cochlear implants (i.e., do deaf parents have the “right to a deaf child”?) and one concerning whether to perform neonatal surgery for a child with ectrodactyly.

The idea that parents should not be allowed to arbitrarily “modify” their babies, at least in certain ways, is not new. Neither is the idea that, in some rare instances, a child should never have been born in the first place. But both those positions are anomalies — for now, at least. Generally speaking, “I would have been better off never having been born” is a losing argument in court.

Still, the notion that a child has a “right to an open future” that supersedes his parents’ wishes is an enticing libertarian proposition, to me at least. I think it’s a very good framework for taking on the great libertarian conundrum of “children’s rights versus parents’ rights.” The parents’ “right to raise their child as they see fit” must end where the child’s “right to an open future” begins.

I never weighed in on the Yearning for Zion incident in Texas. Suffice it to say that mine was the minority view among libertarians. While the actions of law enforcement may have been sloppy and based on improper (and to some extent flat-out false) “evidence,” I continue to believe that the underlying analytical framework the authorities invoked is valid: It is itself child abuse to raise a child in an environment where the celebration (if not the practice) of child abuse is the very purpose of establishing that enviornment in the first place. The one and only true raison d’être of the Fundamentalist LDS cult, one that they themselves openly and notoriously proclaim, is to celebrate the rape of underage girls. That fact and that fact alone is sufficient grounds in the civil context (indeed I would argue that it constitutes probable cause in the criminal context) to search and seize such compounds, without any need for additional evidence of individualized suspicion.

Even if the FLDS adults insist that they only “celebrate” child abuse and swear that they don’t actually engage in it. Even if they in fact don’t ever engage in it. The analysis doesn’t change: The environment itself, the celebration of child abuse itself, is so toxic, so dangerous, that just to expose a child to it, even if no proximate abuse takes place, is itself per se abuse, and a per se violation of the child’s rights.

This is, I submit, an entirely libertarian position (if not, however, the only entirely libertarian position): If it is a proper function of government to protect individual rights, then that includes protecting the rights of these children. Reasonable libertarians can disagree over what those rights are, and how best for the government to protect them, but not whether those rights exist. They do.

If you need a summary of my reasoning, then you can find proxies for it from law professor Marci Hamilton here and here.

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