Roy Moore And Home Schooling

On the Roy Moore Blog today:

The story about Germany’s anti-homeschooling law is getting uglier and more Gestapo-like. You may recall that the German law, introduced under Hitler, was recently upheld by the European Court of Human Rights, which cited “the general interest of society to avoid the emergence of parallel societies based on separate philosophical convictions.” Most, if not all, German homeschooling families are Christian, but their “separation philosophical convictions” could not be allowed to initiate “parallel societies” that threaten and contradict government-approved indoctrination in Germany.

As reported on WorldNetDaily, German police are now forcibly removing crying homeschooled children from their homes and driving them to public school classes. According to homeschoolblogger.com,

On Friday, October 20th, three children were picked up by the police and escorted to school in Baden-Württemberg, with the “promise” that it would happen again this week. . . . The previous minister/secretary of education had said that it was senseless to use police force for something like that, that it wasn’t good for the children, who were obviously well-cared for, and a waste of time for the police. The current minister/secretary of education apparently has another opinion.

Germany’s criminalization of home education is a travesty for religious and educational freedom, and for the authority of the family vis-à-vis the state. And now that we are seeing the boorish manner of enforcement, it is all too reminiscent of a shameful era that we thought Germany had left behind.

I’m not going to fact check this story, though the World Nut Dailey is certainly NOT a reliable source. For purposes of this post, the truth of the report does not matter.

What I am going to point out is that what prevents stuff like this from happening in America is exactly what the Moore Blog slams in this post: Scotus finding non-textual rights.

The case was Pierce v. Society of the Sisters of the Holy Names of Jesus. The state of Oregon had passed a law, like the one in Germany, mandating that all children attend public schools. No private schools, no home schools; the choice was public schools or a criminal conviction.

Opponents argued:

that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void.

Now there is nothing in the Constitution about “the right of parents to choose schools” or “the right of the child to influence the parents’ choice of a school” and making decisions about education requirements is a policy decision. So Scotus did like the Euro Court of Human Rights by quickly rejecting the argument and upholding the law, right?

Wrong:

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children [268 U.S. 510, 535]   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.

Good luck finding any of that stuff in the text of the Constitution. I think it’s in between the right to have an abortion and the right to commit sodomy.

I point this out for two reasons.

First, I find it strange that the Moore crowd will slam Roe – a case whose result they hate – on grounds that apply with equal force to Pierce – a result they love. If Roe is bad because Scotus found rights not explicitly mentioned in the text, then Pierce is bad too. But they never mention Pierce. 

Second, as I’ve said before, ignoring the Ninth Amendment – you know, the one that says the Bill of Rights is NOT an exclusive list of rights – and saying that the only Constitutional rights are those rights explicitly mentioned in the text would get rid of a lot more than just Roe. If there is no right to privacy, there is no right to abortion and there is no right to home school. So you ought to think real hard before deciding to chuck the “right to privacy.”

Oh sure, we can comfort ourselves by saying that even without a Constitutional guarantee, we will always be free to send our kids to private schools or home schools. Nothing like that story from Germany could ever happen here. Except that it did happen. And Scotus stopped it.

  

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8 Comments on “Roy Moore And Home Schooling”

  1. MCF Says:

    You make a good point, Wheeler. There are some implicit natural rights which were not included in the Bill of Rights. Indeed, this is the reason the Framers were initially reluctant to include a Bill of Rights in the first place.

    That said, I do think it is a long logical leap between “right of privacy” and “right to abortion on demand.”

  2. wheeler Says:

    and i can respect your argument. it’s perfectly reasonable to say 1) there are unenumerated rights; 2) pierce correctly applied the unenumerated right to privacy; and 2) roe incorrectly applied the unenumerated right to privacy.

    what i think is erroneous is trying to get rid of roe by attacking point 1. doing so, i think, will also eliminate pierce. if the principle of unenumerated rights is bad in roe, it’s bad across the board.

    much better to argue, as you do, that it’s only the application that was wrong.

  3. Dan Says:

    Wonderful post, wheeler. It puts into words things I have always thought about. I also wonder what Roy things about the partial birth abortion ban, where the government uses an unenumerated power to regulate abortion nationwide.

  4. walt moffett Says:

    Good balanced presentation that should be taught in high school civics but unfortunately won’t because it requires thought to comprehend.

    Please keep it up.

  5. Ben Says:

    Sorry to break up the strawman-bashing with some facts, but in the first post about the German homeschooling story (http://morallaw.org/blog/?p=55), which is linked to in the post Wheeler quotes from, I expressly noted that the Supreme Court has erred in calling the “fundamental parenting right” a constitutional right when it is really a natural right. I quoted from the Troxel case (the lastest in the Pierce line of cases) to show the ideological difference between America and Germany on child-raising, but noted it could change with the whim of SCOTUS. I like the outcome in Pierce, I don’t like Roe, but I can and will admit neither case is constitutionally correct. I shouldn’t expect the same intellectual honesty from you on Roe, though, should I?

    Dan, to the extent you’re serious about Judge Moore’s view on the partial birth abortion ban, I commend to your reading his (and the Foundation for Moral Law’s) amicus brief on that Act, found here: http://morallaw.org/Legal_Cases.html. We argue Commerce Clause does not give authority to Congress, but the 14th Amendment equal protection clause does (and that Roe is a sham).

  6. wheeler Says:

    “I like the outcome in Pierce, I don’t like Roe, but I can and will admit neither case is constitutionally correct. ”

    1) then you, my friend, are the exception and not the rule;

    2) if the great enemy is non-textual rights as opposed to decisions he does not like, than why doesn’t your boss ever mention pierce? if he’s going to go to churches and attack the right to privacy, shouldn’t he present the whole story?

    “I shouldn’t expect the same intellectual honesty from you on Roe, though, should I?”

    – honestly, i’ve never made up my mind on roe. some days i think it was the right result, some days i don’t. my problem with roe is not the principle of a right to privacy, but whether roe was a correct application.

  7. Ben Says:

    Judge Moore is pro-life and believes Roe v. Wade to be wrong, but that’s not usually the central theme of his speeches. His speeches and writings focus on the meaning of the First Amendment, the history of officially acknowledging God in our country, and his own experience with the Ten Commandments monument. Many people want to hear him on those topics. I don’t know of any asking him to expound on his views of substantive due process or Pierce, Meyers, Troxel, etc. Besides us egghead lawyers, most people’s eyes glaze when you start getting into such particulars. Not that Judge Moore’s afraid of getting into those legal technicalities, but the infirmities of Pierce are not usually among the topics he addresses. Moreover, newspaper usually print a tiny fraction of what he talks about, and tend to ignore or dumb down such finer legal points he tries to make.

    I know you reject this notion, but the greater problem in America is that removing from public knowledge the bedrock principle that God gives us life, liberty, inalienable rights, etc., leads to the erosion of respect for the sanctity of life, which leads to a greater acceptance of abortion. Judge Moore tries to address that root of the problem; abortion is one of the (very bad) symptoms of it.

    P.S. Question about Alablawg protocol: Should I post comments here as “Clone” or “Idiot,” or will my real name do fine? 😉

  8. wheeler Says:

    “I know you reject this notion, but the greater problem in America is that removing from public knowledge the bedrock principle that God gives us life, liberty, inalienable rights, etc., leads to the erosion of respect for the sanctity of life, which leads to a greater acceptance of abortion.”

    – my problem is not so much with your argument as with moore’s belief that putting a ten commandments monument in a courthouse (vel sim) is at all related to that argument. forcing government to be entirely secular will in no way, shape, or form remove god from public life or lead to an erosion of respect for life.

    “Many people want to hear him on those topics. I don’t know of any asking him to expound on his views of substantive due process or Pierce, Meyers, Troxel, etc. Besides us egghead lawyers, most people’s eyes glaze when you start getting into such particulars.”

    – smart ass response: yeah, you’re right, it’s hard to work the crowd into a tizzy when you give them the whole story.

    – better response: his arguments often expand to include more generalized attacks on the right to privacy. i think he owes it to his listeners to explain that that maligned right has actually done them some good, too. i also think he would be surprised at the level of interest.

    “Question about Alablawg protocol: Should I post comments here as “Clone” or “Idiot,” or will my real name do fine?”

    – only you can decide that. 😉


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