1. Remember, Remember, the Seventh of September
By Daniel E. Witte
History is shaped by inflection points. On September 7, 2011, the nation witnessed an event in the battle for the Parental Liberty Doctrine that ought not be forgotten.
Earlier that day, the gunpowder1 was poured when the Ron Paul campaign released a statement accusing Texas Governor Rick Perry of attempting to forcibly vaccinate young girls against sexually transmitted diseases. During an MSNBC/Politico Republican debate held that same evening, moderator John Harris lit the fuse by asking Representative Paul to expound further on the topic. Representative Paul, a longstanding supporter of parental liberty, repeated his earlier criticism.2
The plot thickened when Harris bypassed Perry’s request for an immediate response and solicited input from Representative Michele Bachmann, who had lodged verbal complaints against Perry prior to the debate for similar reasons. She obliged: “[W]hat I’m very concerned about is the issue of parental rights. I think when it comes to dealing with children, it’s the parents who need to make that decision. It is wrong for government, whether it’s state or federal government, to impose on parents what they must do to inoculate their children.” Bachmann, a home educator,3 added “Educational reform is another area. … We have the best results when we have the private sector and when we have the family involved.”
At this point, Governor Perry made a critical strategic mistake. He could have unequivocally stated support for parental liberty and offered a rationale for why his opt-out provision adequately accommodated parental choice. Alternatively, he could have highlighted other aspects of his record demonstrating a commitment to parental rights and then expressed regret for an isolated lapse in judgment. Instead, Perry’s rejoinder appeared to express an unapologetic paternalistic predilection to err on the side of overriding parental prerogatives, albeit by state statute instead of executive order. “I hate cancer. … Cervical cancer is caused by HPV. … I don’t know what’s more strong for parental rights than having that opt-out. Now, did we handle it right? Should we have talked to the legislature first before we did it? Probably so. But at the end of the day, I will always err on the side of saving lives.”
Senator Rick Santorum, who like Bachmann is a home educator,4 pivoted away from the moderator’s next question to deliver a coup de grâce. “I want to get back to this Gardasil issue. You know, we have – Governor Perry’s out there and – and claiming about state’s rights and state’s rights. How about parental rights being more important than state’s rights?”
As I have explained since the early 1990s and in a 1998 law review article,5 it is not true that federal government power is limited to express delegation and that state government enjoys unlimited power as to all remaining non-delegated matters. The word “or” in the 10th Amendment clearly indicates that there are three distinct, non-coterminous realms of structural power – the federal government, the state government, and the people – and not merely two (federal and state government) as many Republican state officials prefer to imagine. By virtue of the 10th Amendment and the Ninth Amendment – as well as the 13th and 14th Amendments, among others – the people reserve powers and retain rights that cannot be permissibly derogated byeither federal or state government. It is a paradigm that has gone national.
Perry rhetorically inferred that paternalistic intrusion is acceptable and constitutionally permissible to the extent it is committed by a state government. This position exploded in his face. Today’s Republican grassroots electorate is not clamoring for state paternalism instead of federal paternalism. They are demanding leaders who will stop overreaching of every kind by government at every level. The issue is about liberty versus paternalism, not the purported advantages or disadvantages of Gardasil.
Neither the parens patriae doctrine nor the in loco parentis doctrine can salvage a government scheme for minors that is incongruent with the prohibition against deprivations of 14th Amendment liberty. The federal government has no parens patriae power to affirmatively regulate the daily management of minors in any context. A state government acting in “partnership” with the federal government or industrial lobbyists only possesses the range of state parens patriae power that is allowable under the limits imposed by the United States Constitution. Unless a state has assumed custody of a minor in a parens patriae standing capacity in a manner comporting with required standards of due process and evidence, a state agency exercising control over a minor stands in loco parentis and must yield to parental directives regarding the scope and authorized uses of the authority temporarily and voluntarily delegated from the parents to the state through explicit or implicit means.
The battle to defend the Parental Liberty Doctrine against inept government intrusion6 is longstanding. The more recent development is a focused legal, political and academic scrutiny that has gradually educated the public and sharpened the debate. Home educators are now an important political force in critical electoral states such as Iowa, South Carolina and Florida. Parental liberty and educational choice is becoming a new litmus test for aspiring Republican politicians.
Lessons associated with Perry’s mishap are not lost on the political class.7 Republican state politicians with grand ambitions, including officials in Utah, may well become more wary about violating parental liberty or imposing their own medical care preferences on others.
The author, Daniel E. Witte, J.D./M.O.B., is director of Sutherland Institute’s Center for Educational Progress. Mr. Witte has an extensive background in issues related to parental liberty, educational choice, and organizational reform. He has worked with the Utah Supreme Court, the U.S. Attorney’s Office in the District of Utah, the 10th and 7th Federal Circuit Courts of Appeal, the U.S. Senate, law firms in Korea, Puerto Rico, and California, and as associate general counsel for an insurance company.
1. With apologies to Guy Fawkes.
2. The account and quotations from the September 7, 2011 debate are all taken from “The Republican Debate At The Reagan Library,” New York Times, September 7, 2011, http://www.nytimes.com/2011/09/08/us/politics/08republican-debate-text.html?_r=1&pagewanted=all (full transcript of debate).
3. Mark Zdechlik, “Michele Bachmann: From home-schooling mom to tea party rock star,” June 14, 2011, http://minnesota.publicradio.org/display/web/2011/06/14/michele-bachmann-profile/.
4. Steve Benen, “Political Animal,” March 15, 2011, Washington Monthly, http://www.washingtonmonthly.com/archives/individual/2011_03/028466.php.
5. Daniel E. Witte, “Getting A Grip On National Service: Key Organizational Features And Strategic Characteristics Of The National Service Corps (Americorps),” 1998 B.Y.U. L. Rev. 741, 788-91, 790 n.213; see also Daniel E. Witte, “People v. Bennett: Analytic Approaches To Recognizing A Fundamental Parental Right Under The Ninth Amendment,” 1996 B.Y.U. L. Rev.183.
6. E.g., Daniel E. Witte, “Paved With Good Intentions,” August 25, 2011, http://www.sutherlandinstitute.org/newsletters_stories.php?id=243 (describing Utah’s erroneous attempt to force unneeded chemotherapy on minor Parker Jensen).
7. E.g., “Michele Bachmann’s parental rights theme is an old one,” Los Angeles Times, September 13, 2011, at http://opinion.latimes.com/opinionla/2011/09/injecting-an-issue.html; see also endnotes 2-3.
2. Transcend Session on Integrity Set for Nov. 10
3. Utah Leading the Nation in Innovative Education
According to the report card, Utah has one of the best policy environments in the nation for digital learning. …
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4. How Ogden Can Foster Excellence in Teaching
For her excellence in teaching, she receives the same compensation as her colleague who goes through the motions in class, is unfamiliar with the material, and has students whose test scores reflect his poor efforts and teaching ability.
This is the absurdity of collective bargaining in public education. …
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5. Sutherland Facebook contest
Join us on Facebook this week for a chance to win a starter conservative library!
Whether you are a political novice or experienced in the ways of the wonk, these four books (an $84 value) will help you in your quest for principle-based civic engagement.
Click here to enter.
Books in this starter library include:
• Great American Documents for Latter-day Saint Families: This hardcover book discusses several vital documents of American freedom and liberty – and provides background on the key leaders who helped create these documents and establish our remarkable heritage.
• The Law, by Frédéric Bastiat, defines a just system of laws and then demonstrates how such law facilitates a free society.
• The Road to Serfdom, by F.A. Hayek, is a classic work in political philosophy, intellectual and cultural history, and economics.
• Economics in One Lesson, by Henry Hazlitt, is another classic economic primer. This book lays out the theory behind the “Austrian School” of economic thinking.
6. ‘Strengthening the Family’ Symposium This Weekend
Bryce Christensen, SUU assistant professor and adjunct fellow of Sutherland Institute’s Center for Family and Society, will be one of the presenters at “Strengthening the Family: Engaging Issues with Courage and Civility,” a symposium this Friday and Saturday, Oct. 28 and 29, at the Provo Marriott Hotel. The keynote speaker is Lloyd D. Newell.
Christensen will discuss “Stories Out of School: The Importance of Narrative and Literature in Family Life” during breakout sessions Saturday afternoon.
Admission to the symposium is $12. For more information, click here.
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