This blog post reproduces an e-mail from ParentalRights.org criticizing Justice Scalia for being unwilling to use the power of the Supreme Court to protect parental rights. The e-mail notes that Scalia recently told a group of law students that not all important rights are actually contained in the Constitution. He noted as an example the right of parents to raise their children as they think best. And it also notes that Scalia took this position not only in an informal conversation but also in the course of doing his duty on the Supreme Court. In Troxel v. Granville (2000) Scalia dissented from the judgment of the Court and held that although he thinks parental rights are real and rooted in nature, they are not included in any constitutional provision.
I can sympathize with those conservatives or moral traditionalists who are upset with Scalia over statements like this. There are some on the left who would very much like to use the power of government to “liberate” the children of traditionalist parents from the morality that such parents teach. If there were a constitutional right of parents to direct the upbringing of their children, it would provide a defense against such things.
Nevertheless, I think the criticism of Scalia on this is misplaced. The title of the article in the e-mail is: “Scalia Would End Parental Rights.” Elsewhere it says that Scalia “would rob parents” of “constitutional protection.” But this is just begging the question–the key question for a judge like Scalia. That question is: does the Constitution protect parental rights? If it does, then a judge is bound to enforce those protections. But if it does not, there is nothing a judge can do to protect them–or at least nothing consistent with his oath to uphold the law and the Constitution.
And Scalia has a point here. The Constitution says nothing about parental rights. These rights are, of course, essential to a just society. But the Constitution was written to create a national government, and the men who made it did not think that that government was going to get into things like family law and education. They left those things to the states, and they left it to the people of the states to figure out how to balance the power of the government in these areas with the rights of parents.
One could argue that parental rights are so important that conservative justices should just go ahead and vote to protect them, whether or not they have any clear basis in the Constitution. But that is traveling down a dangerous path. We have seen the mischief that can result when liberal judges make up constitutional law to arrive at the outcomes they desire. This undermines the rule of law and self-government, and it would only compound the assault on these core values if conservative judges do the same thing in pursuit of their favored causes.
Political activism in defense of parental rights is absolutely necessary. But it need not take the form of constitutional lawsuits asking Supreme Court justices to find and enforce rights that are not really in the Constitution.