Document Type

Book Chapter

Publication Date



This is the first chapter from The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child (Yale University Press, 2014.)

It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each, it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parent-child relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality. It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.

The law of parent-child relations has long embodied a belief that education (a “leading away from”) is the path away from childhood and toward intellectual and moral enfranchisement. Unless children are to live under “a perpetual childhood of prescription,” unless we are to deny them the pursuit of happiness, they must be exposed to the dust and heat of the race, intellectually, morally, spiritually. It is no wonder then that we would want to transform the sacred trust of parenthood into a sacred right. But our legal traditions teach that parenthood is first and foremost not a sacred right but a sacred responsibility, a fiduciary duty owed equally to the child and the state. The Constitution’s guarantee of personal freedoms is meaningful only if we, as parents, accept the responsibilities from which parental authority arises, and the constitutional strength of parenting privileges should depend on our willingness to do so.

If by “fundamental” we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged, first, paternal authority and, then, parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.” Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,” stated one court, “is that the rights of the child are alone to be considered.” The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power.

The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.

To say that a parental rights orientation is not deeply rooted in our traditions is not to declare that a particular policy decision is right or wrong. It is simply to say that it is a question of policy whether and how the state should regulate parent-child relations. If we understand that, as a descriptive matter, the right to parent is at odds with a tradition of shared responsibility for the welfare of the child, we might be more willing to consider how old equitable principles can lead to new ways of accommodating the interests of parent, child, and state. By giving parents the right to bring up their children as they see fit, we forestall debate on such contentious questions as educational regulation, religious mentoring, and third-party visitation. We ought not to take these questions out of the public domain by keeping the home under constitutional lock and key.

Publication Citation

Jeffrey Shulman, Sacred Trust or Sacred Right? in THE CONSTITUTIONAL PARENT; RIGHTS, RESPONSIBILITIES, AND THE ENFRANCHISEMENT OF THE CHILD: (New Haven, Conn.: Yale University Press, 2014)