The Family and the ConstitutionDAVID WAGNER
The family occupies a precarious position in the liberal democracies of today.
The family occupies a precarious position in the liberal democracies of today. It still exists; it sometime flourishes; mainstream public policy experts are rediscovering its importance — but at the same time, it is under ideological assault, sometimes in the name of individualism, sometimes in the name of an ill-defined “community” whose agent is, naturally, the state. In the face of this assault, defenders of the family find that there is, in fact, an imperfect fit between the individualism that underlies contemporary moral discussion, and the quintessentially interpersonal nature of the family.
We did not get into this predicament by accident. Mary Ann Glendon, in The Transformation of Family Law, identifies the ideological wellspring of the present assault on the family:
To the French revolutionaries, the old feudal statuses, the Church, the guilds, and even some aspects of family organization were seen both as oppressive to individuals and as threats to the nation-state. . . . [T]he revolutionary leaders aimed at suppression of the corps intermediares of the old regime under the slogan “There are no rights except those of individuals and the State.”
While we in the United States pride ourselves on having avoided in our own revolution the ideological and sanguinary excess of France’s, it may well be that the view of family described by Professor Glendon crept into American practice, wearing at first the reassuring mask of elite charity.
In the late nineteenth century, industrialization and the emergence of unprecedented concentrations of the poor in America’s cities led to new forms of state activity. One that particularly concerns the family is the rise of what Philip Rieff first called the “therapeutic state.” This is the name given to what happens when the casework method of social philanthropy is linked to the coercive power of government.
To put it more concretely: when a rich person, or his agent, shows up at a poor person’s front door and offers assistance that is supposedly tailored to that poor person’s particular needs, the poor person is free to choose a wide variety of responses, ranging from grateful acceptance to slamming the door. But when the agent at the door represents not a private party but the state, backed up by legislation and enforcement power, the poor person’s range of options is extremely limited, and his dignity and autonomy are violated. The state will proceed to “help” him in the way that it, not he, thinks best.
This was precisely the approach that upper-class do-gooders in New York and in other major cities took to the problems of the new urban poor. The objects of casework philanthropy in the poor neighborhoods of America’s late-nineteenth-century cities were very often parents, whose ability to raise their own children was being called into question by the “friendly visitors” from uptown. Even granting the Park Avenue ladies the best of intentions, the movement as a whole was a massive attack on the family among the poor. As Chesterton might have put it, those who professed concern about “poor families” were in fact disturbed not so much by the fact that many families are poor as by the fact that many of the poor have families.
Hunter College political scientist Andrew Polsky, in his 1991 book The Rise of the Therapeutic State, describes the theory of that state by contrasting it with private-sector therapy that is freely sought and freely terminable.
By contrast, public therapeutic intervention aimed at marginal citizens proceeds from the assumption that they cannot govern their own lives. The state therefore seeks to “normalize” them — an odd term, one that jars the ear, as well it should when we consider what the effort is all about. Lower-class clients do not seem to require merely a bit of support, like their middle-class counterparts, but instead wholesale personal and family reconstruction. Intervention sets out to foster new behaviors, instill another set of mores, and cultivate a different outlook toward self and family. By bringing about profound changes at the most intimate levels of human existence, the state aims to integrate marginal citizens into the social mainstream. Further, resistance on their part will not be tolerated. The state has the legal tools to impose client status upon marginal citizens and the coercive instruments to compel them to remain in that exposed position.
Polsky traces the origins of the therapeutic state to the fears of the middle and upper classes of the burgeoning poor population in their midst, and to the alliances formed between the “charitable” organizations and the law enforcement system — alliances that allowed the organizations to take on state — like powers. One of these alliances that flourished in New York City in the 1880s was the Children’s Aid Society, which spawned a number of other groups known as “SPCCs,” or Societies for the Prevention of Cruelty to Children. According to Polsky, the founder of the Children’s Aid Society, one Charles Loring Brace, explicitly viewed parents’ authority over children as something to be eliminated. Other such societies were even bolder than Brace’s. As Polsky tells it:
In fact, the New York chapter in 1881 gained the power to make arrests, while other SPCCs routinely called upon the police. Statutes permitted the societies to be appointed as guardian in neglect cases and to be given immediate custody of very young children. Courts looked to SPCC agents for recommendations and usually followed their advice, which often was to separate a child from his or her family. It was no wonder, then, that the poor called the SPCC “the Cruelty,” and dreaded the appearance of its representative on their doorstep.
It might be hoped that traditional Anglo-American notions of due process would protect families in this situation, and would serve as a filter to separate actual cases of abuse or neglect of children from cases where the family was the victim of a false report, or where there was merely a difference of opinion as to child-rearing technique between the poor family and its unsolicited benefactors. However, then as now, those protections are by and large applicable only in the criminal justice system; they protect parents and families, if, but only if, formal criminal charges are brought. The genius of the therapeutic state as a means of social control, and as a means of substituting the state for the family, is that it functions separately from the criminal justice system, and is subject to few, if any, of the procedural rules that bind the police and the criminal courts.
Today, the American child protection system functions not through the assignment of state power to private agencies, but through agencies that are openly governmental — though, as just noted, not bound by the rules of criminal procedure. The system expanded considerably once the federal government began pouring money into it under the Child Abuse Prevention and Treatment Act of 1974 (CAPTA). Like conventional law enforcement, this system is addressed to a genuine social need; at the same time, again like conventional law enforcement, it can become a threat to protected liberties when not kept within constitutional limits. But, quite unlike conventional law enforcement, it has thus far been allowed to operate virtually free of constitutional restraint.
Abuses by child protection systems are receiving increased public attention. Family issues analyst Dana Mack, researching a book on modern parenting, stumbled across the issue, unexpectedly but repeatedly. Hundreds of parents, writes Mrs. Mack in the Washington Post (January 30, 1994), spontaneously report that they, or close friends and relatives, have been visited by child protection agencies for acts no more noxious than disciplining a wayward child or seeking medical help for a playground injury. The stories they tell — of investigations, removal of children, and irresponsible therapeutic intervention — are the unknown side of the child abuse issue in America.
Three weeks after Mrs. Mack’s Post article, the therapeutic state struck back with a letter from David S. Liederman, executive director of the Child Welfare League of America. Mr. Liederman clearly does not buy the “innocent parent” theory. He scolds Mrs. Mack for champion[ing] parents who, when confronted with the traumatic effects of their behavior, quite expectedly minimize their responsibility and the impact of their actions on their children. . . . [T]hose who are concerned with the safety and well-being of the growing numbers of abused children in this country do not find appeals to parents’ rights at the expense of their children persuasive.
One might ask how, in a democracy founded on notions of freedom and self-government, micromanagement of family life comes to depend not on families themselves, nor on a democratic vote, but on what the Child Welfare League and the elite for which it speaks “find persuasive.”
Child protection reform may be a coming political
issue, but it is not yet clear what direction reform will come from. On the one
hand, horror stories involving false accusations and erroneous breakups of families
continue to pile up. On the other hand, contrary horror stories — where the state
refrained from seizing the child, and the child was later killed or maimed by
the parent — also receive a great deal of publicity, and tend to provoke calls
for still more intrusive legislation. There is widespread dissatisfaction with
our child abuse system — which fails not only by needlessly traumatizing innocent
families, but also by neglecting to intervene in cases where children are actually
in serious danger (often cases that pose some physical danger to the caseworker).
But while nearly everyone agrees the present system needs reform, we are only
beginning to achieve a consensus that parents’ rights, family autonomy, and the
rule of law should play a role in that reform.
Limiting the family’s autonomy and bringing it under the supervision of the state seemed to be very much the trend in the United States in the late nineteenth and early twentieth centuries, but it was not without challengers. Eventually a countertrend found its way into the Supreme Court’s constitutional case law, via the cases of Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).
In these cases, the threats to the autonomy of the family came from efforts to supplant parents as decisionmakers with regard to their children’s education. In Meyer, the state had banned the teaching of modern foreign languages in any school prior to the ninth grade. In Pierce, the state had mandated that all children attend the government — operated public schools.
Both of these statutes were struck down. The constitutional text that the Court invoked was the due process clause of the Fourteenth Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .” The Court has nearly always read this clause as having some substantive as well as procedural content; that is, the clause is read as barring some types of government action outright, no matter how large a majority votes for such action, and no matter how fair the legislative procedures were.
In Meyer and Pierce, the court held that the privacy and autonomy of the family, and the rights of parents to direct the upbringing of their children, are part of the “liberty” protected by the Fourteenth Amendment due process clause. Consequently, laws prohibiting private education, or (as in Meyer) prohibiting parentally desired alternatives in public or private schools, are held to be outside the range of laws that legislative majorities are allowed to enact. The key language for the Pierce decision is as follows:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Meyer and Pierce struck important blows for the sanctity of private life, at just the time that the administrative state with all its regulatory tentacles was beginning to stir. But these cases have had a strange interpretive history. Their utility as an engine for parents’ or guardians’ rights was abruptly capped in Prince v. Massachusetts (1944). Here, the Court resonantly declared:
It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Pierce, supra. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Nonetheless, the court upheld the application of the child labor laws to a child distributing religious literature with his aunt, who was also his legal guardian. Though the “cardinal with us” dictum has often been quoted in later decisions (and even more often in the briefs of pro- family attorneys), and though one certainly need not be “anti-family” in order to support child labor laws, Prince nonetheless put an end to a period in which the Court could be relied on to protect the family, as an institution, against the state.
Then in the 1960s Pierce and Meyer began to be cited as authority for legal propositions that, to say the least, stray rather far from traditional, natural law roots of those decisions. To take the most startling examples, they have been cited in support of a constitutional right to use contraceptives and a constitutional right to have an abortion. Furthermore, a constitutional right to marry, which was itself based in part on the Meyer-Pierce family privacy doctrine, turned into a constitutional right to obtain a divorce.
What happened, in a nutshell, was that the right of parents to direct the upbringing of their children was transformed into a general right of family privacy, which in turn was transformed into a right of personal privacy and autonomy in sexual matters. Though they did not use the word, Meyer and Pierce gave protection to privacy: in fact, they are the foundational cases for the much discussed “constitutional right of privacy.” The Supreme Court in the early 1920s seems to have implicitly understood privacy to be relational rather than personal, oriented toward protecting the special personal relationships that civil society relies on, rather than toward disencumbering the sovereign self.
As elite notions of the content of privacy changed, so did the legal import of the Meyer-Pierce doctrine. Cases that protect parents’ rights to direct their children’s education are accepted as authority for cases that protect a mother’s right to kill her child, and very few people seem to think this is strange.
Nothing could more clearly illustrate the dangers inherent in the substantive approach to the Fourteenth Amendment due process clause: as conservative scholars such as Judge Robert Bork have pointed out, substantive due process is an engraved invitation to judges to read their own policy preferences into the Constitution, bypassing the legislative process and the will of the majority. Those of us who are attached to Meyer and Pierce, but horrified by Roe v. Wade, feel very keenly the force of what we know Judge Bork would say to us: he who lives by substantive due process, dies by substantive due process.
Occasionally, at unpredictable intervals, the Meyer-Pierce doctrine actually gets put to its originally intended use. A sterling example is the decision last December of a state appeals court in New York, in a case called Alfonso v. Fernandez, holding that the New York City Board of Education violated the constitutional rights of parents when it implemented a condom distribution program in the schools without either an opt-out clause or a provision to require the consent of each participating student’s parents or guardians. Said the court:
The petitioners enjoy a well-recognized liberty interest in rearing and educating their children in accord with their own views. Intrusion into the relationship between parent and child requires a showing of an overriding necessity. The minority [among the judges] points to the fact that student participation in the condom availability component of the expanded HIV/AIDs program is wholly voluntary, devoid of any penalty for nonparticipation, and that parents are still free to provide guidance on this and related (or unrelated) issues. However, these factors do not constitute proof that the petitioners are not being forced to surrender a parenting right — specifically, to influence and guide the sexual activity of their children without State interference.
I have omitted the internal cites from this passage, but I would point out that they include Meyer and Pierce. In an irony that illustrates the protean nature of the privacy cases, Roe v. Wade is also cited.
Alfonso was a significant victory for parents; yet they continue to suffer an attrition of their rights.
We have focused on this phenomenon in the child protection system; now it is time to look at the governmental education system. Here we find that the public education system, too, is becoming an increasingly suspect institution from the point of view of family rights. A partial list of the trends that have been either implemented or proposed in our public schools would include: explicit sex education, beginning in elementary school and continuing through high school (implemented in most public schools); school-based health clinics, which would provide contraceptive advice and devices, and abortion referrals (implemented in some schools, advanced in recent federal legislation); lengthening the school day and/or the school year (proposed in some states); lowering the age of mandatory schooling (proposed in some states).
What we may be witnessing is a convergence of education policy and welfare policy, with the schools as all-purpose social service centers. In the “school of the future” proposed by some theories, it is hard to see what role is left for the parental home to play in a child’s life, except that of providing meals and beds. In fact, even meals are slipping away from the domain of the home, as more and more schools provide breakfast as well as lunch (sometimes with the support of parents who cannot — or choose not to — provide breakfast at home). The logical end point, of course, is the system of ancient Sparta, with children living in government barracks. The main difference would be that the Spartan state did not seize the children at quite so early an age.
Given the role that public schools may well play in the grand strategy of the therapeutic state, it seems natural to suppose that in due course Meyer and Pierce themselves would come under attack, first in the law reviews, and later in litigation, especially after the Clinton Administration has seeded the federal courts with judges sympathetic to the therapeutic agenda.
In fact, the law review phase of the attack has already begun. In the summer of 1992 the law review at the William and Mary Law School published an article entitled “‘Who Owns the Child?’ Meyer and Pierce and the Child as Property,” by Barbara Bennett Woodhouse, professor of law at the University of Pennsylvania.
Professor Woodhouse acknowledges that the parents’ rights cases have generally been received with approval by the liberal mainstream of legal academia because they are seen as protecting privacy, freedom of speech, and freedom of association. However, her goal is to reveal what she sees as the hidden dark side of those cases. In her words:
I will argue that they were animated, as well, by another set of values — a conservative attachment to the patriarchal family, to a class-stratified society, and to a parent’s private property rights in his children and their labor. Along with protecting religious liberty and intellectual freedom, Meyer and Pierce constitutionalized a narrow, tradition-bound vision of the child as essentially private property. This vision continues to distort our family law and national family policy, so that we fail as lawmakers to respect children and fail as a nation to recognize and legitimate all American children as our own.
Professor Woodhouse goes on to put some historical flesh on her core argument — her breathless discovery that in deciding the parents’ rights cases the way they did, the Justices committed conservatism. The alternative vision that she offers is one in which public schools — backed up by new laws designed to achieve “exit reduction,” i.e., to make it harder for parents to choose alternatives to the public schools — function as the advance guard of communal child-rearing, and the “narrow” and “tradition-bound” influence of parents is minimized.
While acknowledging the nativism and religious bigotry that lay behind the Oregon school law that was struck down in Pierce, Professor Woodhouse nonetheless endorses that law as a “recipe for radical change.” “Progressive reforms,” she writes, “such as children’s welfare bureaus, juvenile courts, and, of course, the expansion of public schools, pushed at the borders of the domestic realm.” She quotes approvingly from another author endorsing the child protection system as “an attack on patriarchal power.” Children, she believes, should be seen as “having a direct relationship with government.” We should view “the relation of child, parent, and state as a triangular arrangement instituted and regulated by the state for the protection of the child,” and we should welcome “the Progressive vision of the child as public resource and public ward, entitled both to make claims upon the community and to be claimed by the community.”
This is surely the ultimate corruption of the rhetoric of rights — when the right being asserted is a right “to be claimed by the community”; a right of a child to be subjected to the coercive ministrations of the therapeutic state, with or without the child’s own consent, never mind that of his parents.
At the same time, we should receive Woodhouse’s theories with a certain sense of deja vu as we compare them to the views of the French revolutionaries described earlier by Mary Ann Glendon, namely, that the family is to be attacked precisely because it is a barrier between the individual and the state, and a competitor with the state for the individual’s loyalty.
While the nation’s law schools and social service bureaucracies harbor many who would find Professor Woodhouse’s views congenial, many encouraging countertrends are also discernible. For one thing, there is an emerging consensus among policymakers, stretching from the moderate left all the way to the solid right, that the two-parent family is beneficial to children, and that American public policy has ignored this fact, leading to a wide variety of social pathologies. Furthermore, a lobbying organization called “Of the People” has recently been launched for the purpose of defending parents’ rights, especially in education. Also, the practice of teaching one’s children at home is on the increase. (In what some consider a delightful irony, this supposedly backward practice is being helped along by the computer revolution.)
The goal of “Of the People” is to enact amendments to the state constitutions, and eventually to the federal Constitution, protecting parents’ rights. This would be a valuable reform, not only because of its direct effects, but also because it would get around the flaw that some conservative scholars have pointed to in Meyer and Pierce. Much as those decisions correctly applied the natural law, there is no getting around the fact that they represent a reading of that law into the positive law of the Constitution without any specific warrant in the Constitution’s text. One could mount a defense against this critique, arguing that the concept of the family as a zone of privacy and of partial legal immunity is “implicit in the concept of ordered liberty.” Evidence from legal history that the family has nearly always been so regarded could be buttressed by social science evidence of what happens when the family ceases to function. For all that, however, it is always better to have constitutional text to rely on than the shift in policy preferences of the judicial branch of government.
Insofar as liberalism rests on a certain reductionist individualism, and tends to disparage actors other than the individual and the state, the family is an anomalous institution under any regime that rests, as ours does, on liberal premises. Our public philosophy lacks a category into which the family fits easily.
But at the same time, a liberal republic cannot survive without the civic virtues that are learned in the family. As Pope John Paul II wrote in Familiaris Consortio: “[I]t is from the family that citizens come to birth and it is within the family that they find the first school of the social virtues that are the animating principle of the existence and development of society itself.” Many American policy makers who don’t know the Pope from popcorn could endorse that statement.
The particular way in which the family fulfills this indispensable social function is that it fosters human relationships of a type that are not easily found in the wider society, and generally are not found there at all if they are not first learned in the family. As the Pope puts it:
The relationships between members of the family community are inspired and guided by the law of “free giving.” By respecting and fostering personal dignity in each and every one as the only basis for value, this free giving takes the form of heartfelt acceptance, encounter, and dialogue, disinterested availability, generous service, and deep solidarity.
Persons of a utopian frame of mind dream about creating such relationships throughout society as a whole, bypassing the family. In confronting this error, we find that the debate goes to premises about human nature. The liberal philosophers undervalued the family because they thought that team spirit, respect for others, elementary charity in dealing with fellow human beings, and so on were simply innate — part of human nature, which (perhaps in reaction against Calvin’s doctrine of total depravity) they assumed to be good. Catholic teaching has always affirmed (most recently in the opening section of Veritatis Splendor) that human nature, though darkened by sin, still contains a yearning toward the good. But the overwhelming weight of the evidence is that this yearning must grow into actuality in the fertile soil of the family.
Therefore, the survival of all that is best in liberal institutions — respect for the individual human person, commitment to freedom and the rule of law — depends on liberalism being revised and amended so as to accommodate, at the level of principle, the mediating institutions of society, and in particular the family. The opposite path — that of absolutizing only the individual and the state — leads by a short road to the therapeutic state, and to the demise of respect for human dignity as an operative principle in political life.
Wagner, David. “The Family and the Constitution.” First Things 45 (August/September 1994).
Reprinted with permission of First Things: A Monthly Journal of Religion and Public Life published by the Institute on Religion and Public Life, 156 Fifth Avenue, Suite 400, New York, NY 10010. To subscribe to First Things call 1-800-783-4903.
David Wagner is Director of Legal Policy for the Family Research Council. This essay is an updated and expanded version of a speech presented to the Chesterton Review conference on Ethics and Economics in Post-Communist Europe, held in Zagreb, Croatia, November 10-13, 1993.
Copyright © 1994 FirstThings
Not all articles published on CERC are the objects of official Church teaching, but these are supplied to provide supplementary information.