https://thehill.com/opinion/judiciary/3644625-parental-constitutional-rights-undercut-or-overstated/

American parents have — and should have — a fundamental right to make basic choices regarding their children. These rights now are at the core of passionate debate — and social media outrage — about what is taught in schools and what books ought to be available in libraries.

But are these federal Constitutional rights? We tend to think that fundamental rights are and should be constitutionally protected rights. Recently, however, the U.S. Supreme Court has severed connections to a citizen’s right to vote and a woman’s right to control her own body. So what about the rights of parents to make basic choices about their children?

Nearly a century ago, in Meyer v. Nebraska (1923) the court unanimously embraced “the power of parents to control the education of their own,” when it invalidated a Nebraska law that prohibited teaching foreign languages to young students.

Two years later, the court drove home its Constitutional point in Pierce v. Society of Sisters (1925). The Ku Klux Klan dominated state politics in many states in the 1920s, and Oregon decided to ban private schools entirely. Oregon accepted the Klan’s argument that school-aged children would be Americanized most effectively through mandatory public school attendance. As in the Nebraska decision, conservative Justice James Clark McReynolds wrote for a unanimous court and held that the Oregon law was clearly unconstitutional: It interfered with “the liberty of parents and guardians to direct the upbringing and education of children under their control.”

The U.S. Constitution mentions neither parents nor children. Nonetheless, the Court found the anchor for both opinions within the mention of “liberty” in the Fourteenth Amendment’s Due Process Clause. (Termed “substantive due process,” this approach links constitutional rights that have substance to the procedural protections that lawyers and judges have identified over time as minimal constitutional requirements.)

Today, in sharp contrast, self-proclaimed constitutional textualists reject precisely this use of Due Process Liberty as invalid. In fact, Justice Samuel Alito’s majority opinion overruling Roe v. Wade in June decried the use of “substantive due process” as Roe’s primary error.

Alito simply rejected the same use of substantive due process because it allows courts to recognize a woman’s constitutional right to choose without any specific constitutional text. Entirely ignoring the court’s 1920s parental rights decisions, Dobbs rejected the same use of substantive due process because it allows “freewheeling judicial policy making.”

Justice Clarence Thomas, concurring separately, piled on. Thomas argued that substantive due process “exalts judges at the expense of the People from whom they derive their authority,” and even “distorts other areas of constitutional law.”

Thomas therefore urged his colleagues to “reconsider all of this Court’s substantive due process precedents” because “substantive due process has often been wielded for ‘disastrous ends.’” Thomas specifically targeted substantive due process decisions that struck down state bans on birth control; consensual private sexual activity; and same-sex marriage. (Ironically, Thomas omitted Loving v. Virginia, which relied heavily, though not exclusively, on substantive due process to reject widespread state criminalization of interracial marriage.) No one mentioned parental rights in Dobbs. The court instead declared that the court should accept only those aspects of liberty specified elsewhere in the Constitution or those “deeply rooted in the Nation’s history and tradition.” Looked at carefully, however, even maternal choice may not meet this test.

At the time the Constitution was adopted — and for decades thereafter — the only parent legally recognized was the father. When a father died, his children were considered orphans, even when their mother was still alive. Thus, without textual support, a mothers’ historical and traditional legal roots might be too shallow.

Nonetheless, mothers recently have been at least as loud as fathers across the country in claiming parental rights to make choices for their children. Indeed, some parents now claim a right to launch vehement criticism — and even personal threats — aimed at teachers and librarians. No matter how aggressively the Court attacks substantive due process, wouldn’t we agree that parental rights ought to merit constitutional protection, even without links to specific texts? Yet also, as with all other constitutional rights, there must be reasonable limits.

Dobbs underscored — not least through its startlingly selective use of history, tradition, and precedents — that the constitutional text does not foreordain vital rights, nor does it delineate their appropriate limits. Instead, the decision arrogantly proclaimed Roe v. Wade — and all its nuances — “egregiously wrong.” On the day before Dobbs, the court also invalidated New York’s longstanding gun safety law, with little regard for state history and sovereignty, and centuries of the court’s own precedents before Justice Antonin Scalia’s extremely dubious reading of the Second Amendment text. The court underscored, alarmingly, how its own inconsistent analysis fosters cynicism about the court, and about the Rule of Law.

Aviam Soifer served 17 years as dean of the William S. Richardson School of Law at the University of Hawai’i, after five years as dean of the Boston College Law School. He has been teaching and writing about constitutional law and legal history for over 40 years, often focusing on the post-Civil War period.

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