The recent election season opened with hopes high for an intelligent debate of family issues. The 1991 Final Report of the National Commission on Children (on which I served) seemed to have broken the moral and political logjams that had long prevented this dialogue. The commissioners had decided, after extensive argument, to avoid the mistake of earlier children’s commissions, which had treated children as an independent constituency group needing its own government services. Instead, we agreed to focus on children in families and to find ways to strengthen the latter. On the great question of “whose children are they?” the official answer, at least, would be: they belong to their parents, not to the government.
Affirmed by a unanimous, bipartisan vote, the report emphasized that children’s well-being depends primarily on the status of their fathers and mothers and that a stable marital union of self-sufficient adults is the superior setting in which to raise children. The report gave notice to the negative effects of government intervention on families and focused on the dramatic shift of the income and payroll tax burdens onto the backs of families. Its primary recommendation was a tax-cut for families raising children, to be achieved through a new $1,000 per child tax credit. Given these dominant themes, the more traditionalist members of the panel took a certain pride in winning over the support of liberal members like Jay Rockefeller, Bill Clinton, and Marian Wright Edelman.
But the achievement was short-lived. Already on the day of the final vote, the Darman-Bush White House was frantically working to sabotage the report, worried that the endorsement of a tax-cut by Republican appointees to the commission would somehow upset the hallowed “budget agreement” with Congress. Soon after, the presidential electoral debate veered back to distorted themes of the past. Mr. Quayle opened with the stale Republican canard that the “media elite” of Hollywood is the cause of family miseries, a variation of neoconservative “new class” theory. Ignoring the facts, Mr. Bush then traced the family’s breakdown to the Great Society programs of the 1960’s (another staple neoconservative theme). He also transformed “family values” into a metaphor for gaybashing, the 1992 version of “San Francisco Democrats,” used to good effect four years earlier. Mr. Clinton responded with a sterile defense of single-motherhood as a lifestyle choice and an open embrace of “gay rights.” His wife, meanwhile, defended her advocacy of children’s rights and of enhanced state intervention in families.
It may be, though, that this deterioration of the 1992 “family values” debate derived from a deeper weakness in liberal democratic theory. Since Thomas Hobbes first laid out the ideological premises for a society based on the status and rights of the individual, the family has had a tenuous foundation in Western political theory. For Hobbes, family relations were simply an exercise in power, where selfish parents claimed “dominion over the infant” by their superior size and strength. Recoiling from this brutal frankness, John Locke tried to put a human face on the Hobbesian scheme. He carved out “a sort of rule or jurisdiction” for parents over children, and he found in childrearing a practical justification for marriage. Yet the emancipation of the young should occur early on, he continued, and the marriage, its function gone, should “dissolve itself.” John Stuart Mill was less positive. In his famed essay on women’s rights, he called the family system of his day oppressive, the seedbed of despotism, and the source of human misery, “which swells to something appalling.”
Relative to family life, the genius of the American Constitution of 1787 lay in its avoidance of ideology and its devotion to authentic federal principle. Family issues of marriage, divorce, children, inheritance, education, mutual support, and welfare were not questions for the new federal government. These were questions reserved to the states, where Christian conceptions of patriarchy, charity, and shared obligation and Common Law understandings of family and community governance could, and did, hold sway.
Like so much else in our constitutional system, this view of the family began to falter during the Jacksonian period. The first juvenile reformatory in the United States, the New York House of Refuge, opened its doors in 1825. With delegated police powers allowing it to institutionalize children virtually at will, the House of Refuge blurred distinctions between poor, neglected, and delinquent children. The needed legal underpinning for a full-blooded reform school “movement” came from Pennsylvania. In 1839, that state’s Supreme Court ruled that the Philadelphia House of Refuge could incarcerate a girl over her parents’ objections and without formal legal proceedings. The Court based its decision on a new legal principle: parens patriae, or “the parenthood of the state.” Under England’s chancery laws, parens patriae had allowed the Crown to assume a parental role to protect the estates of wealthy orphans. But the Pennsylvania Court expropriated the term to justify the termination of parental rights, reasoning: “May not the natural parents, when unequal to the task of education or unworthy of it, be supplanted by the parens patriae, or common guardianship of the community?”
Buoyed by this denial of both the Common Law and the natural rights of parents, the Child Saving movement gained momentum. The Child Savers soon linked up with the budding social work profession and the progressive spirit, and together they all spawned the juvenile justice system. “Parents could no longer shield themselves behind natural rights,” one early enthusiast said. Without a formal hearing or other consideration of due process, hundreds of thousands of American children would be seized by the Child Savers and incarcerated in reform or “industrial” schools, all for “the welfare of the child,” a lone actor in an individualistic world.
The state courts soon elevated parens patriae into a doctrine superior to any constitution, conferring sweeping powers. As the Illinois Supreme Court reasoned in 1882:
It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patriae, to protect and provide for the comfort and well-being of such of its citizens as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed so as not to interfere with its proper and legitimate exercise [emphasis added].
So energized, the concept quickly spread beyond the “child protection” arena. The late 19th-century proponents of mandatory state schooling, for example, ridiculed attention to “the sacred rights and personal privileges” of parents. Court decisions on mandatory attendance laws ruled that the principle of parens patriae took precedence over the rights of parents.
But parens patriae demanded still more. Franklin D. Roosevelt’s Committee on Economic Security, in its 1935 report, recommended creation of a comprehensive Social Security Act, to replace the support once offered by “children, friends, and relatives.” Congress concurred. In its 1937 decision declaring the Social Security Act constitutional, the U.S. Supreme Court turned to the parental state ideal for justification: “The parens patriae has many reasons—fiscal and economic as well as social and moral—for planning to mitigate disasters that bring these burdens in their train.” Government had an obligation to plan and care for its children.
Indeed, the progressive spirit viewed the natural or biological family as the residue of another age. As a leading social historian from the period put it, “American history consummates the disappearance of the wider familism and the substitution of the parentalism of society.” Prominent sociologists, such as William Ogburn and Ernest Groves, documented the “deinstitutionalization” and “disorganization” of the family, as it passed virtually all of its function over to state and charitable authorities, experts better able to manage children and give meaning to adults. At Herbert Hoover’s 1930 White House Conference on Children, one leading participant called for recognition of an emerging new being: “Uncle Sam’s Child,” an entity “who belongs to the community almost as much as to the family,” a “new racial experiment,” and a citizen of “a world predestinedly moving toward unity.” These human experiments in Utopian democracy had been liberated from the disabling ties of the prescientific, predemocratic age and had become malleable agents for the better world order to come.
The full impact of the Parenting State was delayed, though, by Depression and war, followed by the strangest of developments—”The 50’s.” For a remarkable 15 years, 1946- 1961, the Utopian dreams of social engineers for a “familial state” were put on hold. Families appeared to grow stronger and more independent, as GIs and their brides poured into the mushrooming Levittowns of what Henry Luce called “a new America,” The divorce rate went down and the birthrate soared, while the Child Savers beat a retreat. Sociologist Talcott Parsons saw the baby boom and the sprawling new suburbs as signs of the “upgrading” of the American family. The “household engineer” bonded to “the organization man” in a “companionate marriage” focused on “personality adjustment” became the new model, one celebrated and reinforced by Luce, Walt Disney, Ozzie Nelson, and other imagemakers from the era. Indeed, neoconservative theory later elevated this time-dependent family system into the “traditional family” of modern lore, over which political battles in the 1990’s are still being fought.
In truth, the family system of the 50’s was fragile, transitory, and incapable of being reproduced. The peculiar psychology and economics of postwar America, combined with distinctive anticommunist and antistatist fervors, had checked for a time the ambitions of parens patriae. But its agents and sustaining laws were still in place. The Child Savers simply refocused, for a decade or so, on “the scourge of juvenile delinquency,” with James Dean unwittingly providing them with the perfect cover. Rapid public school growth to accommodate the baby boomers preoccupied education officials, while Social Security became a tame, and seemingly cheap, presence in American life.
This halcyon age collapsed in the 1960’s, though, as it had to at some point, and the old trends and their parasitical “professions” came roaring back. Marriage rates tumbled while divorce rates soared. Illegitimacy spread rapidly among white Americans (it was already common among blacks), while marital fertility collapsed. The “sexual revolution” came out from under the covers, where it had been heating up since the American libido was drafted in 1942, to do battle with the arthritic and thinning legions of Christian decency. The family itself fell into disrepute, pummeled bv nco-Malthusians, neofeminists, neo-Marxists, and neopagans alike.
Sensing their opportunity, the Child Savers returned. In 1962, several clever advocates coined the phrase “battered child syndrome.” Soon Life, The Saturday Evening Post, Good Housekeeping, and other bored organs of the 50’s synthesis began thumping the drums with articles like “Parents Who Beat Children” and “Cry Rises From Beaten Babies.” The emerging late 20th-century American mind, awash in sensation and cheap sentiment, lurched to the proffered solution. Between 1963 and 1967, all 50 states adopted “reporting laws,” requiring doctors, teachers, and social workers to report suspected eases of child abuse. Like Child Saving tools of the past, these laws essentially denied the existence of natural parental rights and the Common Law. Accused parents faced a presumption of guilt (often involving seizure of their children) until they could prove their innocence. Other ancient legal protections—including the husband-wife privilege—were scrapped, in service to a great new crusade.
In fact, in the very year when this new “crisis” took form, fewer than 5,000 cases of physically abused children could be counted nationwide. Bv 1968, the number was still onK 6,617. Yet a kind of inflation, in social statistics as well as money, soon occurred. By 1981, the official number reached 85,000; by 1986, 250,000; and today, over one million.
To believe the Child Savers, Americans are now battering their children at a level unprecedented in human history. On the one hand, the actual incidence of serious physical and sexual abuse probably is rising. However, this appears to be a consequence of the already shattered domestic order. A rapidly growing number of children are living in homes where the natural father is absent, due to illegitimacy, abandonment, or divorce. Many of these households also contain “live-in” boyfriends, who tend to behave in brutal fashion toward children of the earlier male.
On the other hand, the Child Saving crusade has relentlessly aimed its machinery at intact families. Spurred on by twisted feminist theories of patriarchal oppression, state agents have whipped up public hysteria, generating over one million false accusations of abuse each year. Healthy American families are subjected to the real abuse of state investigations into their structure and character, a special kind of terror unique to the sentimental totalitarianism of late 20th-century America.
State schools serve as the primary instruments of scrutiny and indoctrination. From the earliest grades, children are taught by public officials to be suspicious of their parents’ touches and told how to register complaints over parents’ actions with public officials. Federally funded School-Based Multi-Disciplinary Teams enter schools to ferret out “abusing families.” These cadres of social workers and psychologists have the power to examine a family’s source of income, history, living conditions, attitudes, self-image, spousal relations, impulse control, and degree of community involvement. Those falling short of federal standards face therapy, loss of children, and formal criminal charges.
Indeed, it is primarily through the state’s schools that parens patriae continues its drive to displace the autonomous family. As Princeton sociologist Norman Ryder has conclusively shown, government schools serve as the prime instrument for communicating a “state morality” and a “state mythology” designed to subvert the bonds and sense of continuity of each family. “Families” are allowed to exist only as they become agents of the state, dutifully providing room and board to the state’s children.
G. K. Chesterton explained, decades ago, what was at stake here. “The ideal for which the family stands . . . is liberty,” he wrote. “It is the only . . . institution that is at once necessary and voluntary. It is the only check on the state that is bound to renew itself as eternally as the state, and more naturally than the state.”
For the 1990’s, the most important front in the ongoing contest between the liberal state and the family may be “homeschooling.” Embracing but a handful of children thirty years ago, homeschools now educate at least a half-million children; the actual number is probably over a million, and growing. These families have pulled their children out of state schools, seeking to defend the integrity of their distinctive history and moral message from the leveling impulses of the state. At the same time, these families act on the instinctive knowledge that their existence as autonomous entities requires a reclaiming of powers and functions from parens patriae. This “refunctionalization,” in turn, changes the family’s nature, often restoring the sense of “household” and economic community lost decades ago.
Not surprisingly, parens patriae has turned its full fury on these latter-day rebels. Authorities in many states have mobilized neglect and abuse laws alongside truancy laws to harass or imprison parents and to force their children back into the government’s schools. Yet the number of dissenters continues to grow, forming a new kind of underground movement against the overweening ambitions of the parental state.
The reconstruction of family life in America cannot be based on the “companionate” model of the 1950’s, as the neoconservative dream would have it. This “traditional family” represented no more than a brief pause, inherently unstable, in the transfer of power and authority from the autonomous family of the 19th century to the triumphant parens patriae of the 20th. More certainly, the current liberal dream of public daycare and expanded “family services” represents a plan for the final destruction of the state’s only real rival. Instead, the survival of the American family depends on those families able and ready to reclaim the functions and the powers, such as education, that are naturally theirs. The critical battles will be fought in hamlets and cities throughout the land, as individuals wake up and shake off their shackles, rediscovering that their liberty, like the liberty of their neighbors, rests on their covenants of marriage and parenthood.