Parents Have Constitutional Rights To Protect Their Children From Leftist Madness Part I
Leftist states give the government ever greater power to interfere with parenting, but legal history establishes parents’ and families’ long-standing, non-textual constitutional rights.
This is a two-part series. Part I examines whether parental rights exist in constitutional law. Part II will examine the substance of constitutional parental rights.
With the American family under full-scale assault from those who want to destroy the family and brainwash children in their own toxic ideology, it is more important than ever to establish that parents have constitutional rights to raise their children without government interference. Indeed, a strong argument can be made that what progressives are doing, between the overt sexualization of children and interference with parental rights, is not merely unconstitutional, but criminally so.
The Supreme Court has held multiple times that parents have constitutional rights to raise and teach their children. These rights, although not explicitly stated in the Constitution itself, are still good constitutional law, even though they are spoken of in the case law as being based on the now discredited legal theory of “substantive due process of law.” That is, the holdings are constitutionally valid even without that “substantive due process” gloss.
The Fifth Amendment and Due Process of Law at the Founding
In the 18th century, English law clearly defined the phrase “due process of law,” which the Founders incorporated into the Fifth Amendment of the Bill of Rights.
No person shall…be deprived of life, liberty, or property, without due process of law….
That phrase, “due process of law,” has roots stretching back to the Magna Carta of 1215 A.D. The United States adapted it from English law and held the common understanding that the term was a short-hand reference for all of the procedures with which the federal government had to comply before stripping people of their life, liberty or property (e.g., rights to a jury trial, to confront one’s accusers, etc.).
During America’s first eight decades, state governments were not bound by any of the Bill of Rights’ restrictions. It only applied to and bound the federal government.
The 14th Amendment and Due Process of Law after the Civil War
In 1868, the states ratified the 14th Amendment, requiring that the state governments, too, must comply with due process of law:
No State shall…deprive any person of life, liberty, or property, without due process of law….
Incorporation
The Supreme Court has held, over a long series of cases, beginning in 1897, that one effect of the 14th Amendment’s due process clause was to “incorporate” most of the provisions of the Bill of Rights, thus binding the state and local government to the same extent that the Bill of Rights bound the federal government.
This has not been controversial. The Supreme Court mostly recently invoked this interpretation in 2010 when it held, in McDonald v. Chicago, that the 2nd Amendment applies to state and local governments.
Substantive Due Process as a Justification for Unconstitutional Judicial Activism
In the late 19th century, interpreting the 14th Amendment became controversial due to the worldwide rise of Marxism, along with its socialist American cousin, the Progressive movement. Progressive justices on the Supreme Court seized on a novel—and ludicrous—legal theory; namely that the 14th Amendment did not merely protect procedural due process, but “substantive due process.” Mirable dictu! The progressive justices found that substantive due process allowed them to amend the Constitution unilaterally—no process required—and pronounce their personal policy preferences as newly minted constitutional law.
This obscene and destructive farce was, but for a limited exception, a complete nullification of the power entrusted solely to the people to amend the Constitution through one of the two processes set forth in Article V, neither of which allows for the Court to play any role. And yet progressive justices on the Supreme Court used the canard of substantive due process to announce new constitutional rights made up from whole cloth in cases such as Griswold v. Connecticut (1965) (contraceptives); Roe v. Wade (1973) (abortion); Lawrence v. Texas (2003) (buggery); and Obergefell v. Hodges (2015) (gay marriage).
The canard of substantive due process was, for roughly a century, the most important tool by which progressives, unconstitutionally and outside of the ballot box, altered American society. There is a reason why progressives today want to pack the Supreme Court, though it bears observing that a progressive Supreme Court is no longer the primary means of forcing unconstitutional change on America. The primary means since Obama has been the regulatory state.
Substantive Due Process & Other Non-Textual Constitutional Rights
Beyond raw judicial activism, the Supreme Court also used “substantive due process” as a convenient shortcut for dealing with rights that, while not found in the Constitution, were firmly a part of our history in 1787, when the Constitution was ratified. These long-existing rights, to which the Supreme Court gave the unnecessary gloss of “substantive due process,” included parental rights and the right of a family to be free from government interference. Meyer v. Nebraska (1923): Pierce v. Society of Sisters (1925); Prince v. Massachusetts (1944); Stanley v. Illinois (1972); Cleveland Board of Education v. LaFleur, (1974); Moore v. East Cleveland (1977); Smith v. Org. of Foster Families, (1977); Quilloin v. Walcott (1978); Lassiter v. Dept, of Social Services, (1981); Little v. Streater (1981); Santosky v. Kramer (1982).
Dobbs and the Writing on the Wall for Substantive Due Process as Carte Blanche for Judicial Activism
In 2022, when the Court decided Dobbs v. Jackson Women’s Health Org., Justice Alito gave an originalist definition to the 14th Amendment’s “due process” language. One of the 14th Amendment’s functions, wrote Alito, was to “incorporate” the Bill of Rights, applying those rights to the states. A second function was to allow the Court to conduct a very narrow historical analysis to determine whether a non-textual right existed in common law at the time of our Founding but was overlooked in the Bill of Rights. Wrote Alito:
The underlying theory on which this argument rests—that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights.
The first consists of rights guaranteed by the first eight Amendments. Those Amendments originally applied only to the Federal Government [citations omitted] but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. [Citations omitted.] The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.
In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty.” [Citations omitted.]
Neither abortion nor any of the other rights the Supreme Court’s progressives had created by fiat using the canard of substantive due process could possibly pass such a historical analysis. Alito’s originalist reformation of the 14th Amendment due process clause had progressives dialing up their primal screams up to 11.
As Justice Clarence Thomas and three dissenting progressives (Justices Kagan, Sotomayor, and Stevens) took pains to point out, not only did the case overturn the progressive sacrament of abortion as a constitutional right, but Alito’s narrow definition of the 14th Amendment due process clause also fully and completely repudiated substantive due process as a viable legal theory.
Clearly, going forward, the Supreme Court cannot invoke “substantive due process” to create yet more new rights from whole cloth. Yet what of all the other “substantive due process” precedents?
Inexplicably, the Dobbs majority resorted to its own legal fiction, cowardly stating that its opinion only applied to overturn abortion. The majority explicitly left in place, at least for the moment, all the other newly minted “constitutional rights” the Court had predicated on “substantive due process.” This has created a cognitive dissonance in the law that cannot possibly long survive. As Justice Thomas wrote in his concurrence:
[T]he Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” [Citations omitted.]
As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” [Citations omitted.] “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” [Citations omitted.] The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.
The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. *** [N]o party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised. [Citation omitted.] Thus, I agree that “[n]othing in [the Court’s] opinion shoIuld be understood to cast doubt on precedents that do not concern abortion.” [Citation omitted.]
[I]n future cases, we should reconsider all of this Court’s substantive due process precedents….
Progressives’ death grip on substantive due process as a hill to die on has been long-standing. In 1982, President Reagan nominated Justice Robert Bork, a leading opponent of “substantive due process,” to the Supreme Court. Senators Joe Biden and Ted Kennedy Jr. created a new verb, borking, when they teamed up to keep Justice Bork off the Supreme Court. As part of their scurrilous attack, Ted Kennedy warned of a dystopian future if Robert Bork was able to lead the Supreme Court to declare “substantive due process” unconstitutional:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is–and is often the only–protector of the individual rights that are the heart of our democracy.
Every single line of that attack was pure bullshit. Everything Kennedy raised was either an issue of state law beyond the enumerated powers of the federal government to touch, or it raised scenarios where people were already protected by the text of the Constitution and the Bill of Rights. Judge-created rights made up from whole cloth as part of substantive due process played no role in Kennedy’s parade of horribles.
Regardless, Kennedy’s fear-mongering is exactly the same style of attack progressives made following the Dobbs decision and its promise of a complete repudiation of substantive due process. For instance, soon after Dobbs, the Boston Globe ran an article by Travis Anderson, ‘Wonder if Loving v Virginia is next.’ Legal experts on both sides unpack Roe decision. The article quotes from one radical progressive after another, all decrying the damage from the decision and predicting imminent doom if all substantive due process cases were overturned.
One of their most arrogant narratives, though, concerned interracial marriage. Clarence Thomas’s wife is white. It was the progressive gotcha’ narrative, that Thomas is such a low IQ idiot that he was going strip from the law the holding in Loving v. Virginia (1967) that interracial marriage was a constitutional right:
Neal Katyal, a former acting US solicitor general in the Obama administration, tweeted that the ruling could set the table for extreme measures like overturning Loving v. Virginia, a 1967 ruling that removed bans on interracial marriage.
“Wonder if Loving v Virginia is next on the list of cases for Justice [Clarence] Thomas to overrule,” Katyal tweeted, citing Thomas’s concurring opinion Friday in the abortion case.
Wow. None of these arrogant assholes bothered to read Loving v. Virginia, at least not beyond the headnotes. Had they done so, they would have seen that the Court had multiple grounds for finding that Americans have a constitutional right to marry without respect to race. Indeed, the very first basis the Court cited was the 14th Amendment’s Equal Protection Clause, the basis for all civil rights laws.
No State shall…deny to any person within its jurisdiction the equal protection of the laws.
Only afterward, without any necessity, did the Loving Court also hold that substantive due process was an alternate ground. As Justice Stewart explained in his concurrence in Loving:
We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.
All the progressive bullshit fear-mongering is designed to protect the progressive justices’ ability to continue to exercise an unconstitutional power to amend the Constitution. If every precedent predicated on substantive due process were overturned today, it would do nothing more than return our nation to operating within the bounds of the Constitution.
Parental and Family Rights Are Still Good Constitutional Law
To explain why parents and families have constitutional rights existing outside the text of the Constitution, a bit of history about our Bill of Rights is in order.
In 1787, near the conclusion of the Constitutional Convention, a delegate from Virginia, George Mason, proposed that the delegates draft a Bill of Rights to place limits on the power of the new federal government they had just created. The delegates overwhelmingly voted down the proposal. That may seem inexplicable today, but it made sense at the time, given the English legal system.
American Colonists fought a Revolution against Britain over the colonist’s demand to be treated to the “rights of Englishmen.” Our nation did not fight a war to replace the English system of government, but rather to emulate and perfect the English system in America. That very much included adopting the “rights of Englishmen,” which were a bulwark against government power.
The English legal system in 1786 was, in a way, chaotic. Some of the “rights of Englishmen” were listed in the three great legal documents of English history: the Magna Carta of 1215, the Petition of Right of 1628, and the English Bill of Rights of 1689. Many other “rights” were “common law” legal precedents that had been established by judge and jury in cases over a period of centuries. For instance, the right of an Englishmen to be free from search or arrest on a general warrant was established by the precedent of a legal case in 1763, Wilkes v. Wood.
There was one big problem with the concept of the “rights of Englishmen”: there was no single list of all the rights. Most “rights” were well known and well established, such as the right to be taxed only by one’s own elected representatives, a right that appeared in the English Bill of Rights. But other “rights” either appeared in dusty legal tomes and were subject to being overlooked or were so fundamental to the 18th-century Anglo world that they went without notice or comment. Thus . . .
James Wilson of Pennsylvania…argued that the act of enumerating the rights of the people would have been dangerous, because it would imply that rights not explicitly mentioned did not exist; Hamilton echoed this point in Federalist No. 84. [Endnotes omitted.]
As the Constitution’s ratification continued into 1788, it became clear to all that the Convention’s decision entirely to exclude a Bill of Rights was untenable. States were demanding a Bill of Rights as their primary concern, but there were also loud calls to redo the Constitutional Convention in its entirety. James Madison, a leading opponent of a Bill of Rights at the Convention, could see a real danger that the nascent nation would come apart if something were not done to address these concerns.
Thus by 1788, Madison became the driving force behind creating a Bill of Rights to amend the Constitution. Elected to Congress as a Representative from Virginia, Madison gathered all state proposals for what should be included in a federal Bill of Rights, then winnowed them down to a list of twelve amendments, ten of which the states adopted in 1791 as the Bill of Rights.
The Dobbs Court’s holding that the 14th Amendment’s due process clause includes a narrow test for non-textual rights wholly comports with the Founders’ concern that any Bill of Rights would overlook some existing rights. Thus, the question we face as the government comes to trans our children is whether family and parental rights are “deeply rooted in [our] history and tradition” and whether those rights are essential to our Nation’s “scheme of ordered liberty.”
Parental and Family Rights were Deeply Rooted in This Nation At The Founding
It would be easy to write entire tomes on how the sanctity of the family is deeply rooted in the history of Western Civilization, from ancient Rome through our nation’s 18th-century founding. It is a topic so intertwined with Judeo-Christian teachings and English traditions that it is not surprising that the Founders did not make explicit parental and family rights. No one in 18th-century Britain or the colonies sought to assault parents and families by taking control of their children and imposing their ideology.
The era of Sparta, when the state did take control of the children, had died during Western Civilization’s infancy, and the eras of Marxism and progressivism, when the state would again seek to intercede in families and take control of children, would not be seen until the 20th century, a time when Vladimir Lenin promised, “Give me four years to teach the children and the seed I have sown will never be uprooted.”
As the Supreme Court explained in Meyer v. Nebraska (1922):
For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:
‘That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. * * * The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.’
In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and entrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.
Beginning with ancient, pagan Rome, under the doctrine of pater familias, the family was considered a legal and sacrosanct societal unit. Judaism had long held this and, as this Jewish notion spread via Christianity through Western Civilization, the Bible itself dictated that the family was the fundamental unit of society. Pope John Paul II explained:
God wished humanity to live in harmony and peace, and laid the foundations for this in the very nature of the human being, created “in his image”. The divine image develops not only in the individual but also in that unique communion of persons formed by a man and a woman so united in love that they become “one flesh” (Genesis 2:24). It is written: “in the image of God he created them; male and female he created them” (Genesis 1:27). This specific community of persons has been entrusted by the Lord with the mission of giving life and of nurturing it by the formation of a family. It thus makes a decisive contribution to the work of stewardship over creation and provides for the very future of humanity.
The initial harmony was disrupted by sin, but God’s original plan continues. The family therefore remains the true foundation of society….
At the heart of this theology is that the family is “the foundation for freedom, security, and fraternity within society” and that government has a duty not to interfere in that relationship. Rather, government’s duty is “to ensure especially “the freedom to establish a family, have children, and bring them up in keeping with the family’s own moral and religious convictions.”
This philosophy was so fundamental to Western Civilization as a whole, as well as to English law and traditions, that, in 1689, John Locke devoted an entire chapter of his magnum opus, Second Treatise of Government, to the rights, duties and responsibilities of parents and families within the context of government. The Second Treatise is the foundational text of modern liberalism and, by 1787, was the single most influential work of political science in America. The Founders wove Locke’s precepts almost in toto throughout the Constitution.
Locke reasoned that the building block of Western society is the family. Parents, Locke says, have both a right and God-imposed duty to raise and educate their children during the child’s minority, as well as the right, duty, and power to protect their children from those who would do the children harm. Writes Locke:
The freedom then of man, and liberty of acting according to his own will, is grounded on his having reason, which is able to instruct him in that law he is to govern himself by and make him know how far he is left to the freedom of his own will. To turn him loose to an unrestrained liberty, before he has reason to guide him, is not the allowing him the privilege of his nature to be free; but to thrust him out amongst brutes, and abandon him to a state as wretched, and as much beneath that of a man, as their’s. This is that which puts the authority into the parents hands to govern the minority of their children. God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it, as his wisdom designed it, to the children’s good, as long as they should need to be under it.
It is an easy argument to make that non-textual parental rights are valid Constitutional law irrespective of “substantive due process.” The next issue, to be dealt with in Part II, is the substance of those rights and whether they protect parents and families from the full-scale assault being waged by progressives determined against children and their families.
