Do Parents have a Constitutional Right to Raise their Children?

I.  Introduction:

In the United States of America, do parents have a Constitutional right to raise their children as they see fit?  I think that most parents assume that they have this right, but how do they know for sure? The right to raise one’s children does not expressly appear anywhere in the United States Constitution or the Bill of Rights—the first ten amendments to the Constitution.  So, unlike the right to freedom of speech, or the right to keep and bear arms, or the right against self-incrimination, we must find the right to raise one’s children somewhere else.

The Bill of Rights does not define the limit of our rights as American citizens.  In other words, a right does not exist BECAUSE it is included in the Bill of Rights. Nor are we deprived of any right BECAUSE it is NOT included in the Bill of Rights.  Alexander Hamilton argued against including the Bill of Rights as part of the Constitution because of his concern that it would be interpreted as a limitation of rights.   Hamilton cautioned,

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Hamilton, Alexander; Madison, James; Jay, John. The Federalist Papers #84.

So, even if the Bill of Rights does not define the limit of our freedom, we still need to find some authority for the right to raise one’s children as one sees fit.  One might assume that if a power is not specifically granted to the government, it remains with the people.  This is theoretically true as applied to the federal government, but not for the state governments. Generally, the interference with a parent’s right to raise his children will come from state law, rather than federal law.  Again, quoting the Federalist Papers:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Hamilton, Alexander; Madison, James; Jay, John. The Federalist Papers #45.

Numerous and indefinite? That seems rather broad.  Certainly, there must be some limit on the power of the states, right?

II.  Due Process

This brings us to the concept of Due Process of Law, which is perhaps the most important right that we have as American citizens.    

Essentially, “due process” means fairness. Its underpinnings hearken back to the Magna Carta’s requirement that a person can be divested of life or property only by the law of the land and not by the arbitrary whim of the king.

Frederick Douglass, the former slave who became one of America’s greatest statesmen, famously said “the rights of men reside in three boxes- the ballot box, the jury box, and the cartridge box.”  You cannot blame Mr. Douglass for not mentioning the due process box because the idea of “due process” probably did not mean in his time what it now means in our time.  The modern notion of “due process” comes from the 14th Amendment of the United States Constitution, which was ratified in July 1868. The 14th Amendment states,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(emphasis added). 

There is also a “due process” clause in the 5th Amendment, but that clause only applies to the federal government, and it might only apply to criminal prosecutions. This raises the question of what is due process and why is it the most important right?  And, why does the right to due process of law matter for a parent’s right to raise his children?

a.   Procedural and Substantive Due Process

There are two categories of due process– procedural due process and substantive due process.  Procedural due process is easier to define, though its requirements can change depending on what’s at stake.  Generally, when very important interests are at stake—such as a criminal defendant’s liberty-- the minimum requirements of procedural due process are 1) notice, 2) an opportunity to be heard, and 3) a fair and impartial tribunal.  There can be other requirements such as the right to counsel, the right to cross-examine witnesses, and the right to have the determination made solely on the law and the evidence presented at the hearing. These latter three requirements are generally encompassed within the minimum requirements.  For example, the right to be heard would be meaningless in many contexts for many people if it did not include the right to be heard by counsel trained in the law (but not necessarily the right to court-appointed counsel).  The right to a fair and impartial tribunal would be meaningless if the decision could be made based on reasons other than the applicable law and the evidence presented at the hearing, or evidence that is not part of the record.

The other category of due process is substantive due process.  This category is less well defined, and very much more controversial.  The very term “substantive due process” has been criticized as an oxymoron. See Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 331 (2022) (Thomas, J. concurring).

Under the theory of substantive due process, the courts have recognized the existence of rights that are not expressly mentioned in the constitution, “but any such right must be ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty.’”  Substantive due process also “incorporates” much, but not all, of the first eight amendments of the United States Constitution and makes them applicable to the states.  Prior to the ratification of the 14th Amendment, the Bill of Rights only applied to the federal government. Even after the ratification of the 14th Amendment, there remained significant questions about the applicability of the Bill of Rights to the states.  Some might be surprised to learn that even a basic, fundamental right such as the right against self-incrimination found in the 5th Amendment was not always interpreted to apply to the States through the 14th Amendment.  See Adamson v. People of State of California, 332 U.S. 46 (1947), overruled by Malloy v. Hogan, 378 U.S. 1 (1964).

b.   The 14th Amendment

As mentioned above, the concept of “substantive due process” is derived from the 14th Amendment, which obviously did not exist at the time of the founding of the United States.  In fact, the 14th Amendment along with the 13th and 15th Amendments are called the Reconstruction Amendments because they were passed in the aftermath of the Civil War.  Relatively soon after the ratification of the 14th Amendment, the Supreme Court cautioned that the Amendment’s purpose was not to interfere with the States’ police power:

But neither the amendment—broad and comprehensive as it is—nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.

Barbier v. Connolly, 113 U.S. 27, 31 (1884).  The Supreme Court has described the police power as “one of the least limitable of governmental powers[.]” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83 (1946).

III.   The Substantive Due Process Right to Raise One’s Children

The influence of substantive due process grew during a well-known era in the Supreme Court’s history referred to as the Lochner Era, named for the case of Lochner v. New York (1905).  In Lochner, the Supreme Court held unconstitutional a New York labor law restricting the number of hours that a baker could work– ostensibly to protect the health and safety of bakers. The Court reasoned that the law violated the fundamental right of individuals to enter contracts– a right that is not expressly stated in the Bill of Rights and therefore based on the idea of substantive due process.  The Lochner Era is synonymous with the Gilded Age, the Roaring Twenties, and laissez-faire capitalism because business interests were prioritized over the interests of labor.  The Lochner Era would set in motion the legal foundation for the recognition of the fundamental right of parents to direct the upbringing of their children particularly when that right conflicted with the state’s police power.    

IV.  Parens Patriae and the State’s Police Power

Now that the stage is set, let’s talk about the fundamental right to raise one’s children.  In family law, there is a much-quoted aphorism:

The relationship of parent and child is a status––not a property right. Parents, whether divorced or not, have no property right in their child's custody, concerning which they may make contracts[.]

In re Rosenthal, 157 A. 342, 344 (Pa. Super. 1931); see also Rogers v. Daven, 148 A. 524 (Pa. 1930). What does it mean to say that parents do not have a property right in their children?  As explained by the Supreme Court of North Carolina,

But the infant child of their union is not property, and the father can have no vested right in the child or its services under a decree divorcing the parents. Such decree as to the child has no extraterritorial effect beyond the boundaries of the state where it was rendered. The child is now a citizen of North Carolina, and, as such peculiarly under its guardianship and the courts of this state will not remand it to the jurisdiction of another state, especially where, as in this case, it is so manifestly against the true interests of the child. “Minors are the wards of the nation, and even the control of them by parents is subject to the unlimited supervisory control of the state.” In this case it is said: “The supreme right of the state to the guardianship of children controls the natural rights of the parent when the welfare of society or of the children themselves conflicts with parental rights.”

Ex parte Alderman, 73 S.E. 126, 129 (N.C. 1911) (internal citation omitted) (emphasis added).

Through the years, the meaning of this aphorism has slightly changed.  In Pennsylvania, courts now apply it to dependency cases, rather than to private contracts concerning custody of children:

Indeed, the relationship of parent and child is a status and not a property right, and one in which the state has an interest to protect the best interest of the child.”

Int. of K.C., 310 A.3d 296, 304 (Pa. Super. 2023).

The aphorism appears to originate from an opinion written by Justice David Brewer writing for the Supreme Court of Kansas in the case of In re Bort, 25 Kan. 308 (1881). Justice Brewer would later rise to the United States Supreme Court in 1889.  Though once very well regarded, Justice Brewer has become relatively obscure nowadays because his judicial philosophy has not aged well.  Justice Brewer’s tenure on the high court ended when he died in 1910.  He voted with the majority in Lochner. And, while on the Kansas Supreme Court he provided the lone dissent from an opinion overturning segregation of public schools. In his dissent, Justice Brewer wrote,

I dissent entirely from the suggestion that under the fourteenth amendment of the federal constitution, the state has no power to provide for separate schools for white and colored children. I think, notwithstanding such amendment, each state has the power to classify the school children by color, sex, or otherwise, as to its legislature shall seem wisest and best.

Bd. of Educ. of City of Ottawa v. Tinnon, 26 Kan. 1, 23–24 (1881).  This opinion was not necessarily borne from racism, though.  Justice Brewer clarified his position: “[. . .] classification by color may be unreasonable and deserve condemnation; but the question before us is not one of policy, but one of power.” Id. at 24.

In In re Bort, Justice Brewer rejected the petitioner’s argument that the full faith and credit clause of the federal constitution, U.S. Cont. Art. IV, §1, required Kansas to honor the award of custody granted by a court in Wisconsin.  Justice Brewer wrote the oft-cited words:    

This claim seems to rest on the assumption that the parents have some property rights in the possession of their children, and is very justly repudiated by the courts of Massachusetts. 2 Bish. Mar. & Div. (5th Ed.) p. 204.

[. . .]

We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents, and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time, and in any way, to protect and advance their welfare and interests.

In re Bort, 25 Kan.  at 309-10 (emphasis added). Justice Brewer made no mention of the 14th Amendment, substantive due process, or the unenumerated fundamental right of parents to raise their children.  This is consistent with the judicial philosophy at the time that the 14th Amendment did not affect the States’ exercise of the police power.

In fact, prior to the ratification of the 14th Amendment, there was little doubt about the State’s parens patriae authority.  In 1839 the Supreme Court of Pennsylvania wrote,

The object of the [House of Refuge for children] is reformation, by training its inmates to industry; by imbuing their minds with principles of morality and religion; by furnishing them with means to earn a living; and, above all, by separating them from the corrupting influence of improper associates. To this end, may not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriæ, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it. That parents are ordinarily entrusted with it, is because it can seldom be put into better hands; but where they are incompetent or corrupt, what is there to prevent the public from withdrawing their faculties, held, as they obviously are, at its sufferance? The right of parental control is a natural, but not an unalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation; and it consequently remains subject to the ordinary legislative power, which, if wantonly or inconveniently used, would soon be constitutionally restricted, but the competency of which, as the government is constituted, cannot be doubted. As to abridgment of indefeasible rights by confinement of the person, it is no more than what is borne, to a greater or less extent, in every school; and we know of no natural right to exemption from restraints which conduce to an infant's welfare.

Ex Parte Crouse, 4 Whart.9  (Pa. 1839) (emphasis added).

The Supreme Court of the United States would indirectly repudiate the In re Bort rationale to some extent in the year 2000 when it issued its plurality opinion in Troxel v. Granville, 530 U.S. 57 (2000), which I discuss in more detail a little later. 

V.  The Lochner Era's Landmark Cases

Considering the judicial philosophy of the Lochner Era, it is not surprising that a case from this era created the precedent that the 14th Amendment protects the fundamental right of parents to raise their children through substantive due process.  In 1923, the Supreme Court decided the landmark decision of Meyer v. Nebraska, 262 U.S. 390 (1923).  In this case, the Court considered a state law that prohibited the teaching of any subject in a language other than English to students before the 8th grade. There was an exception for “dead” languages, such as Latin, Greek, and Hebrew.  A teacher had been convicted of teaching a 10-year-old child to read in the German language.  The conviction was upheld by the Nebraska Supreme Court. The purpose of the law was essentially to force the large immigrant population that had immigrated to Nebraska after WWI to assimilate and speak English.  The Court held that the law was an arbitrary assertion of government power.  The Court found no good reason why a parent should be prohibited from hiring a teacher to teach his children a foreign language.

Interestingly, in its opinion the Court referred to a law proposed by Plato that children should be raised by the state and never know their parents.  The Court also referred to the practice in Sparta of removing children from their parents at the age of seven to be raised by official guardians. The Court wrote, “[a]lthough such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest.” Id. at 402.  Nowhere in the opinion did the Court cite any authority to support its finding that

Without doubt, [the due process clause of the 14th Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Id. at 399 (emphasis added).   This opinion became the authority upon which almost every other parent vs. police power opinion would be based.

The next landmark case was also from the Lochner Era.  In Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon law that required all children of a certain age to attend ONLY public schools.  The plaintiffs were a Catholic school and a military school. The Court noted that under the “doctrine of Meyer v. Nebraska,” the law at issue

unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Id. at 535 (emphasis added).  Note that in Pierce there was no question that the private schools were educating children consistently with the state’s requirements. The emphasized language contradicts the prevailing judicial philosophy of the pre-Lochner Era espoused in In re Bork, over 45 year earlier. Pierce, especially the emphasized languange in the above quote, would be cited often in the substantive due process battle between parents and the state’s police power.

These two Lochner Era cases essentially declared unconstitutional arbitrary laws that served no legitimate purpose in the Court’s view.  The laws were so arbitrary that they did not even protect the very interests that the states presented as their rationale for passing them.  Over 70 years later, Justice Kennedy, in a dissenting opinion, noted that had these cases been decided today, they probably would have been decided on First Amendment grounds rather than substantive due process.  However, the impact of these landmark cases on substantive due process remained.

VI.  Post Lochner Era—the Survival of Substantive Due Process

The Lochner Era ended in 1937 with the case of West Coast Hotel Co. v. Parrish, which upheld the right of the state to impose minimum wage laws.  Yet, the idea of substantive due process, as a limitation on the state’s police power, emanating from the 14th Amendment survived. 

In 1944, the Supreme Court decided Prince v. Massachusetts, 321 U.S. 158 (1944).  In this case, the Court considered whether a parent was guilty of violating a state child labor law when the child distributed religious literature on the street– essentially acting as a street preacher.  The appellant raised constitutional challenges under the First and 14th Amendments.  The Court cited Meyer and Pierce for the rule that

It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.

Id. at 166.  However, the Court then acknowledged many ways in which the state can interfere with a parent's decision on how to raise his children.  The Court cited compulsory school attendance, child labor, and vaccination laws.  Ultimately, the Court upheld the law on very narrow grounds.  It first said that the law was unquestionably constitutional when applied to a child alone on the street, but then narrowed the question to when a child was accompanied by a guardian.  The Court described different ways that street preaching can be dangerous physically, mentally, and emotionally.  The Court reasoned,

Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.

Id.  at 170.  Then,

We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.

Id.

Thus, it appears that the Lochner Era’s recognition of the fundamental right of parents to raise their children may have been a short-lived excursion from the older idea that children belong to the state, not the parents. 

In 1972, the Court decided Stanley v. Illinois, 405 U.S. 645 (1972).  However, this case was really decided on procedural due process grounds rather than substantive due process.  In this case, the Supreme Court held that an unwed father had a right to a hearing to determine his parental fitness upon the death of the children’s mother.  Citing Meyer v. Nebraska, the Court acknowledged

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed ‘essential,’ Meyer v. Nebraska, [supra], ‘basic civil rights of man,’ Skinner v. Oklahoma,[1] 316 U.S. 535, 541, (1942), and ‘(r)ights far more precious . . . than property rights,’ May v. Anderson,[2] 345 U.S. 528, 533, (1953).

Stanley, 405 U.S.at 651.  This case is somewhat incredible because the Supreme Court seriously considered the state’s argument that “unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case[.]” The court continued,

The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency.[footnote omitted] Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.

Id. The Stanley Court held that the father’s interest outweighed the state’s interest.  The Court emphasized that it had no issue with the state exercising its power to remove children from parents:

But we are here not asked to evaluate the legitimacy of the state ends, rather, to determine whether the means used to achieve these ends are constitutionally defensible. What is the state interest in separating children from fathers without a hearing designed to determine whether the father is unfit in a particular disputed case? We observe that the State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.

Id. at 652-63.

The Stanley dissenters focused on the procedural posture of the case and thought the issue decided by the majority was not properly before the Court.  However, within the dissent is the following observation about the “human condition”:

Furthermore, I believe that a State is fully justified in concluding, on the basis of common human experience, that the biological role of the mother in carrying and nursing an infant creates stronger bonds between her and the child than the bonds resulting from the male's often casual encounter. [. . .] Centuries of human experience buttress this view of the realities of human conditions and suggest that unwed mothers of illegitimate children are generally more dependable protectors of their children than are unwed fathers. While these, like most generalizations, are not without exceptions, they nevertheless provide a sufficient basis to sustain a statutory classification whose objective is not to penalize unwed parents but to further the welfare of illegitimate children in fulfillment of the State's obligations as parens patriae.

Id. at 665–66 (Burger, J, dissenting) (emphasis added).

Also, in 1972 the Supreme Court decided Wisconsin v. Yoder, 406 U.S. 205 (1972).  This case once again forced the High Court to contend with the intersection of religion, education, parental rights and the State’s police power.  Yoder provides a narrow precedent for two reasons:  first, the opinion largely rests on the Court’s finding that the Old Order Amish Religion has a long and recognized history of three centuries within American society.  Id. at 235.  Second, the holding is based on Freedom of Religion as guaranteed by the First Amendment, which was made applicable to the States through the 14th Amendment.  The Court held that a statute requiring all children to attend school until the age of 16 was unconstitutional when applied to the Amish and the Mennonite Church because it violated their sincerely held religious beliefs.  The Court specifically limited its holding to laws that interfere with religion:

A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.

Id. at 215. 

Once again, the Court relied on “the doctrine of Meyer v. Nebraska” as understood by the Court in Pierce. The Court opined that

[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.

Id. at 232-33.  

But is this true?  Remember that in Meyer the Court distinguished contemporary society from the western tradition espoused by Plato and practiced in Sparta: “[a]lthough such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest.” Meyer v. Nebraska, 262 U.S. at 402.  Also, prior to Meyer, there was certainly a well-established history of state courts recognizing the states’ unlimited police power to protect children.

In Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court upheld the opinion of the Supreme Court of Washington which declared unconstitutional a Washington State statute that permitted any person at any time to petition the court for visitation of children if visitation would serve the “best interests of the children.”  In reaching this holding the Court once again invoked the doctrine of Meyer v. Nebraska for the rule that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65. 

The Court took exception to the Washington statute because it was “breathtakingly broad.” The problem, as defined by the Court, was that any third party could petition for visitation, and once a petition was filed, the parents’ estimation of the children’s best interests was afforded no presumption of validity or weight.  The statute, therefore, permitted the judge the sole discretion to interfere with parents’ custody of their children based solely on the judge’s determination of the children’s best interests. Id. at 67. 

Troxel was a divisive case.  It generated three concurring opinions and two dissenting opinions.  In dissent, Justice Scalia wrote,

Judicial vindication of “parental rights” under a Constitution that does not even mention them requires [. . .] not only a judicially crafted definition of parents, but also—unless, as no one believes, the parental rights are to be absolute—judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious—whether we affirm or reverse the judgment here, or remand as Justice STEVENS or Justice KENNEDY would do—that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.

Id. at 92–93 (Scalia, J. dissenting). Both Justice Scalia in his dissenting opinion and Justice Thomas in his concurring opinion attempted to avoid the substantive due process issue altogether.  Justice Scalia would have held that the right to raise one’s children is included within the “inalienable rights” of the Declaration of Independence and the Ninth Amendment.  C.f. Ex Parte Crouse, 4 Whart. 9 (Pa. 1839) (noting that “The right of parental control is a natural, but not an unalienable one.”).  Justice Thomas expressly chose not to comment on whether the due process clause permits enforcement of unenumerated rights. Justice Thomas simply stated that the fundamental right of parents to direct the upbringing of their children exists but cited no authority for that conclusion. 

VII. Conclusion

The Supreme Court’s plurality opinion in Troxel is diametrically opposed to the judicial philosophy that existed prior to the Lochner Era.  Thus, in 120 years our American culture moved from

“Minors are the wards of the nation, and even the control of them by parents is subject to the unlimited supervisory control of the state.”

And

We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. [. . .] In other words, a court of chancery stands as a guardian of all children, and may interfere at any time, and in any way, to protect and advance their welfare and interests.

to the Supreme Court deciding that a statute permitting a court to award custody based solely on its determination of the best interests of the child was unconstitutional.  And the genesis of this cultural shift is a case from an outdated era, that cited no authority for its doctrine, and in fact, cited contrary authority within the canon of Western tradition. 

Notwithstanding the cultural vicissitudes that influence judicial philosophy over the decades and centuries, the “fundamental” right to raise one’s children is not “deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty.” If it were so “deeply rooted” the courts would not rely on the 14th Amendment, which was not ratified until 1868, as authority to enforce that right against the state’s police power.  In fact, prior to the Lochner Era cases, the prevailing judicial philosophy was that the state has unlimited power to protect the welfare of the children within its borders—subject, perhaps, only to a determination the law is arbitrary.

Ultimately, if parents want the authority to direct the upbringing of their children, that authority must come from the State legislature.  It is important for citizens to understand that constitutional rights, as interpreted and defined by the Supreme Court of the United States, are fickle and subject to change. Our freedom as American citizens and citizens of the individual states lies in our power to elect the state representatives that write the laws. 

____________________

[1] Declaring unconstitutional as violative of the equal protection clause an Oklahoma statute that required habitual offenders convicted of certain crimes, but not other similar crimes, be sterilized.  

[2] Mother could not lose her custody rights to her children in an ex parte divorce action in a state where she was not a resident, not domiciled, nor present.