Some comments on recent posts have suggested that libertarians should support a broad notion of parental rights. I haven’t written at any length on parental rights (except as to the special case parental free speech rights), and my thinking on this is far from definite; and of course I surely can’t speak for libertarians generally. But as somehow who is in many matters a presumptive libertarian, I thought I’d say a bit about this. Note that I’m speaking in this post about what I think the right rules ought to be, not about what we should understand our Constitution to say with regard to this question.
1. To begin with, though parental rights are seen by the law as part of parent’s “liberty,” it’s an unusual sort of liberty. The strongest case for liberty arises when people seek the right to do what they please with their own bodies, labor, and property, and the bodies, labor, and property of consenting adult partners (whether sexual, familial, business, or otherwise). But parental rights are the rights to control someone else’s actions. My child is not me. He is not my property. That I have the right to, say, alter my own body (or hire someone to do it for me) or to choose spiritual healing over traditional medical treatment doesn’t tell us much about whether I should have the right to alter another person’s property, or deny another person medical treatment — even if the other person is my minor child.
2. Moreover, parental rights don’t just involve the government refraining from action (e.g., by not arresting me for false imprisonment when I physically restrain my child, the way it would if I tried to do that for an adult). Rather, they involve the government taking affirmative coercive steps to support parents’ rights. The law often makes it a crime to entice minors from their parents, even when the minors are happy to go. It lets police forcibly return runaway minors. Some statutes threaten children “who persistently or habitually refuse to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian” with being adjudged “ward[s] of the court.” And some court decisions go so far as ordering people not to contact a particular minor. See Brekke v. Wills, 23 Cal. Rptr. 3d 609, 613 (Ct. App. 2005) (upholding injunction barring sixteen-year-old girl’s ex-boyfriend, whom mother considered bad influence, from contacting the girl, partly on grounds that injunction helped protect “[mother’s] exercise of her fundamental right as parent to direct and control her daughter’s activities”). If parents are legally allowed, for instance, to decide not to provide a child with certain medical treatment, a doctor who wants to provide such treatment would be legally barred from providing it.
Thus, parental liberty involves (A) suspension of the normal rules — which most libertarians approve of — barring one person from coercing another, plus (B) special rules that outright forbid people from certain actions with other people’s children. This is pretty far from things such as liberty of speech, sexual liberty (whether or not one thinks such liberty should be constitutionally protected liberty), liberty of contract, and so on. So the libertarian case for parental rights has to rest on something other than the basic “my body, my labor, my choices” libertarian perspective. To be sure, the parent may say “my child,” but that’s a different sense of “my” than in “my body.” Someone’s being “my brother” or even “my spouse” doesn’t give me rights over that person. If someone’s being “my child” gives me rights over the child, there needs to be some better explanation than “liberty” in the abstract.
3. My sense is that the strongest such explanation, at least from a libertarian perspective, should not from claims about parents’ inherent liberty to control their children’s upbringing, and more from claims about what’s best for children given the limitations of government. The argument would go something like this: Children, up to a certain age, need someone to make decisions for them, with an eye towards putting them in the best position to exercise their liberty once the children grow up. Someone needs both to shield them from dangers that may keep them from surviving to adulthood (disease, accidental death, starvation, criminal attack), and to positively provide them the things they need (education, self-control, and the like).
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