by Jim McCarthy
Pronouns have now entered the cross hairs of the culture wars, particularly in the discourse about parents’ rights in schooling.
Sometimes one longs for the good old days of yesteryear, nostalgic for their simplicity, generally free from microanalytic contention over the spoken and written word. While media is often faulted for contributing to an environment of conflict, even rage, promoting wars of words, JQ Public has been constitutionally armed for the fray by Facebook, Twitter, Instagram, and other platforms. In that sense, we have ourselves to blame for making dispassionate civil discussion extremely difficult, sometimes impossible, even incomprehensible.
The September 22 issue of BR carried a piece entitled “Parents’ Rights Are on the Virginia Ballot. Again.” The author asserted as gospel that “Children do not belong to the state, they belong to their parents” with no mention of the rights of children bookending the pronouns around “belonging.” The statement is a closed proposition defining a possessory interest of parents in their children to the exclusion of all others. This concept suggests the biblical language of dominion over the earth or subsequent perceptions about the necessity of children as agrarian labor to sustain the family. There ought to be little disagreement that children do not “belong” to anyone.
However, culture warrior sensitivity is not bounded by simplicity, often reflecting the micro-conflicts that excite its ethos. Recently, VPOTUS was trolled on Twitter for her statement, “When you see our kids, and I truly believe that they are our children, they are the children of our country, our communities” in connection with climate crisis. The head of CPAC tweeted, “Hands off my kids lady.” Other Twitterers joined in complaining that parents don’t matter or called for parents to wake up.
Native American culture fostered the relationship between people and the Earth as one of stewardship not dominion. While there is no identifiable consensus listing the rights of children. The nation’s history and laws reflect both broad and specific proscriptions for the health, welfare, and education of its children while promoting and protecting their lives, liberty, and happiness.
The nation’s first census in 1790 enumerated Virginia’s free white children under the age of 16 at 116,135, about 15.5% of the state’s total. If free white women and slaves (the largest cohort in the country) were similarly demarcated, the figure would impute to 261,580 or 21% of the state’s population. The comparable 2020 census figure for Virginia is 21.8% for residents under the age of 18.
From colonial times to the 1800s Virginia experimented with nascent attempts at a broad system of education for its children. Thomas Jefferson was a proponent of establishing a statewide system, and in 1870 the state constitution authorized a compulsory statewide segregated education system. Separate and unequal was not ended until the 1954 Brown decision, although it was delayed by the massive resistance attempt to sustain that past, that is, to maintain “theirs” and “ours” institutions.
As decades passed, the Industrial Revolution’s unquenchable thirst for labor wreaked havoc upon new immigrant families, prompting the adoption of child labor laws in the early 1900s to complement compulsory education systems. Historical sources indicate that child labor, i.e., under 16, represented 18% of all workers in the U.S. in 1900. The prescription for both reform efforts mirrored to some extent the implicit 1790 enumeration while expressing no government possessory or other ownership interest with respect to children, only that such public policy was essential to the common weal and its future.
Over time, as the nation’s population rapidly expanded, demands for government intervention in adoption, abuse, neglect, and trafficking affecting children followed in recognizing the shared goals for the health, education, and safety of children. Neither the first ten amendments to the U.S. Constitution, nor its body, specify language with respect to children’s rights. In the current Court’s analytic view, this shortcoming means children’s rights are not “deeply rooted” and have no original or textual anchors within Constitutional jurisprudence, notwithstanding any precedent.
In 2002, SCOTUS overruled a decision (Atkins v Virginia) by the Virginia Supreme Court affirming the death penalty for an intellectually disabled defendant 18 years old at the time of the offense. In two prior cases, the Court upheld the execution of a 15-year-old (Thompson v Oklahoma, 1988) and a 16- year-old (Stanford v Kentucky, 1989), until 2005 (Roper v Simmons) when it found that the execution of an individual under 18 years of age violated the “cruel and unusual punishments inflicted” provision of the Eighth Amendment.
The dissent in Roper, led by Justice Scalia, cited that the absence of a “national consensus” on the application of the cruel and unusual standard was beyond the scope of the law and did not encompass cruel and unusual at the time of the ratification of the Bill of Rights. He further criticized his colleagues for making de facto amendments (i.e., legislating from the bench). In 2021, Virginia became the 23rd state to eliminate capital punishment. It’s impossible to appreciate what number of states might constitute a national consensus regarding capital punishment or what figure (if any) might represent consensus. The potential for Roper to be reversed may be in jeopardy in the “deeply rooted” criterion crafted by Justice Alito in the overturning of Roe v Wade in Dobbs v Jackson. In addition, there exists no reference in the Constitution to capital punishment nor any text upon which to rely inviting the presently constituted Court to determine that Roper was wrongly decided.
Unlike the status of Dred Scott, who was deemed to be a non-citizen, children belong to the universes of their families and the jurisdictions wherein they live and are not the chattel of either. Rhetorical fist fights over pronoun usage, expressed in irreducible terms, shed no light or wisdom on the existence of children’s rights.
Judge Frank Easterbrook, now retired as chief judge of the Seventh Judicial Circuit and regarded by Justice Scalia as a replacement for him on SCOTUS, considered himself a textualist in interpreting the Constitution and has been quoted advising that “the choice among meanings must have a footing more solid than a dictionary – which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” He was even more emphatic in composing the forward to one of Scalia’s books:
Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the distance becomes so great that the meaning is no longer recoverable reliably. [Courts] should declare that meaning has been lost so that the living political community must choose. The imperative in the jurist’s mind clearly differs from that of the ideologue who demands a fixed outcome, or at least one the ideologue prefers.
Children are neither the chattel nor the property of any individual or government. Legally they are persons with unalienable rights that the adult society must acknowledge. Contrary assertions or suggestions are disingenuous, distorting commonly held normative understandings to cater to a political or cultural view.
In 1996, Hillary Clinton wrote It Takes a Village, a book with some chapter contents that read like guideposts to inform the contemporary debate:
- No Family Is an Island
- Every Child Needs a Champion
- Kids Don’t Come with Instructions
- The World Is in a Hurry, Children Are Not
- An Ounce of Prevention Is Worth a Pound of Intensive Care
- Security Takes More Than a Blanket
- Children Are Born Believers
- Childhood Can Be a Service Academy
- Kids Are an Equal Employment Opportunity
- Child Care Is Not a Spectator Sport
- Education = Expectations
- Children Are Citizens Too
Virginia’s educational and political leadership is no less obliged to appreciate its responsibility in this matter while cooperating with parents in formulating policies and practices for the benefit of all children. Winking or nodding appeasement to political or cultural biases speaks to a lack of integrity.
Jim McCarthy is a retired New York attorney living in Virginia.
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