republican majority in the senate in 2025. journalist michael tackett's book, a profile of senator mcconnell, is called the price of power and subtitled a mitch -- how mitch mcconnell mastered the senate, changed america and lost his party. mike tackett conducted over 50 hours of interviews and was granted access to never before released oral histories. >> journalist michael tackett with his book, the price of power on this episode of book notes plus with host brian lamb. book notes plus is available on the c-span now free mobile app or wherever you get your podcasts. >> democracy. it is not just an idea, it is a process shaped by leaders, elected to the highest offices

and entrusted to a select few with guarding its basic principles. it is where debates unfold, decisions are made and the nations worse is charted. democracy in real time. this is your government network. this is c-span, giving you your democracy unfiltered. >> next, a discussion about parents rights to raise their children have a seat to and laws meant to guarantee child welfare standards, and how opposing political parties can find common ground. this was hosted by the american enterprise institute.

underway here on c-span2. >> and their best judgments. anytime that we tread on those rights it must be done with good reason and with great care. throughout american history the strength of parents' rights has waxed and waned, but i think this recent year the cry to be given greater to parents rights has reached a peak and those voices are coming from across the political spectrum. certainly the pandemic and the lockdown have grown the desire for more parental control in education among many americans, even those who were heretofor

uninjured uninterested in politics. from vaccines to gender transition procedures. at the same time the field of child welfare has seen the growth of government asking them to step back arguing the agency suffer from not only systemic bias, but they're punishing parents for conditions of poverty. and yet, there are hundreds of thousands of children in this country, who are abused and neglected each year, they are suffering from a variety of mal treatments, physical abias, sexual abuse, torture, medical neglect. more than who die from cancer and gun violence. how do we balance the protection of those children with the rights of parents to raise children in the way they see fit? these issues are not strictly

partisan, self-described republicans and democrats, conservatives, progressives strongly disagree on the substance of these questions. i was struck by a moment a little over a year ago by a republican primary debate megyn kelly asked chris christie why he did not favor a ban on gender transition surgery for minors. the former new jersey governor answered with this, he we are out there saying we should empower parents in education, i agree. we should empower parents to be teaching the values that they believe in their homes without the government telling them what those values should be and yet, we want to take other parental rights away? i'm sorry, as a father of four, i believe there's no one who loves my children more than me. every once in a while parents are going to make decisions we disagree with, but the minute you take those rights away from parents, you don't know what rights are going to be taken away next. many in the audience that night were probably dumbfounded.

there are similar contradictions on the left side of the aisle, does party that generally favors more government intervention and support now find the government hopefullily flawed and biased. none other than al sharpton stood by a family sued, and a 4-year-old died of starvation, who had refrigerator full of food and turned to the wall. and the definition has green murkier, as activists begin to push new federal legislation and constitutional amendment on the subject, it's worth visiting what's at stake in the parents' rights debate. i'm thrilled to present three panels, one on legal issues, one on medical field, one on the policies and practices of

child welfare agencies though there will probably be discussion on all three of the other topics as well. i think all three panels today are bipartisan, but the sides may shake out in ways that may surprise you. i want to thanks james phillips and the wheatley institute at brigham young for co-sponsoring today. in fact, this event is james' idea so anything goes wrong, you can blame him. with that i'll turn it over to my aei colleague adam white for our first panel. >> welcome, everybody, and i just want to echo naomi's greetings for all who are here

today and everyone watching online either now or at a later time. looking forward to the questions and the conversation. our conversation started last week, one of the usual pre-panel prep calls and in the course of thinking through this morning's conversation, somebody, i can't remember if it was elizabeth or marcy pointed out that 2025 is the 100th anniversary year, centennial of the famous supreme court course, pierce versus society of sisters, one of the earlier cases, the supreme court proclaimed the broad right of parents to control to the extent the education of their children and a famous line where the court says the child is not the mere creature of the state, these who nurture him and direct his destiny have the right and high duty to recognize and prepare him for additional obligations. my guess is that in a conversation like the ones we're having today, practically everybody could agree with that

statement with a high level of generality. as we get to particulars with life within the family and broader life of a political community it becomes much, much harder to pin down exactly what that means to practice. and i'm grateful to be joined today by four experts who will have a wide range of thoughts on the broad question of the rights of parents, the rights of children and the power of the state, the responsibilities of parents and the state. let me introduce the speakers very, very briefly in the order that they'll speak. we'll hear first from professor elizabeth kirk, professor of law at the catholic university of america where she also co-directs the law school's center for law and the human person. and then we'll hear from marcy hamilton, founder and ceo of child usa, a thank you tank, the policies that protect children against neglect and abuse and professor of practice at the university of pennsylvania, and experienced

supreme court litigator and successfully argued bernie versus flores. and we'll hear from a senior fellow from the cato institute, center for constitutional studies and writes widely on constitutional law and constitutional culture and always nice to welcome my friend walter back to aei where he was professional a researchers and editor. and the aforementioned james phillips who naomi will hold responsible for the success or failure today, he's an aassociate professor for byu and the wheatley center constitutional government initiative and professional practiced constitutional law with the beckett fund. so, again, thanks to all of you for joining us and elizabeth, why don't you go first. >> all right. thank you to naomi for the invitation and to abby and all

the staff of the aei for their hospitality and hosting us here and online. so, naomi sort of deftly lays out of thought provoking angle of with the strange bed fellows, together relying to resist governmental intrusion into the family. in my brief remarks i just want to make two points briefly. first, that the legal landscape of parental rights and the counter intuitive ideological perspectives brought to bear on it, involves more than the context that will largely focus on today of child welfare and health care and education. so, a few examples just to make this point, but the field is broader. the title of this panel is parental rights and the constitution, so it's appropriate to begin by pointing out that as the cases

percolating through the court demonstrate. 100 years after pierce v society of sisters, the supreme court's failure to address and resolve the constitutional foundation for the protection of parental rights, the applicable test or standard of review to aid in line drawing and the scope of parental rights and concrete cases especially as found in our nation's history and tradition as generated admittedly great fodder for legal scholars, but confusion throughout the law relating to custody, visitation, education, or medical decision making. the court's rhetorical language adam cited throughout the last century, to support parental claims, but parental rights claims from both sides of the aisle often fail. whether it's parental objection to offensive curricular in public schools on the one hand

or parental objection to state bans on gender transition treatment. the state, whether through its parents, power to protect children or its police power to regulate the medical professional or provide for an educated citizenry, usually wins. also, those advocating for stronger constitutional protection of parental rights and decision making through heightened judicial scrutiny must think about the impact on other areas of law that life child welfare do not cut neatly across ideological lines. for example, in the area of juvenile justice, do the requirements of due process, which the court has already held applies in some sense to minors, combined with a robust notion of parental rights, require more parental involvement or even parental culpability in the juvenile justice system.

what about in custody disputes? it's axiomatic, given no-fault divorce and nonmarital child bearing, courts adjudicate custody and legal visitation often without any allegation or evidence of parental infitness. meaning that one parent who might oppose the breakdown of the marital relationship and has done nothing to demonstrate parental unfitness may have his or her parental rights curtailed and to do so courts universally employ the best interest of the child standard, which is notoriously subjective and subject to politicalization. and would a vigorous rights call for greater of the state custody between the parents as it already exercises in the

context of dispute in intact families or would it call for a more objective standard than best interest of the child? what about in areas that we think of like -- that we cast as children's rights? so what would be the impact of a robust parental rights doctrine in legislators or ports have granted minors, especially adolescents autonomy like the mature minor doctrine or reproductive decision making. what about father's rights, would a more robust rights demand more parity such as in the context of abortion or adoption, the list could go on, child labor, many contexts. all of this is to say that the ways in which parental rights claims arise are myriad and complex and do not lend themselves easily to one legal test or predictable outcome. constitutions and courts aren't

well-suited to addressing so many matters at a high level of generality as so much of our substantive due process and jurisprudence makes clear. even legislators, you can't make everyone happy, and many areas, child welfare and school, personnel is really policy. that's my first point, that it's complicated and that both sides need to be careful about what they wish for. the second point is that the rhetoric or even constitutional indication of parental rights, is not going to get us very far if we can't talk about what is genuinely good for the child. and this is admittedly more and more difficult because of deep fractures in the notions of the good. some scholars characterize the recent emphasis on parental rights as purely rhetorical, necessary, because addressing the underlying view would be

politically unsuccessful. so to give a couple of examples, one scholar says, quote, movement conservatives do not want to argue against racial justice, so they make a parental rights argument against schools teaching critical race theory. others describe the reliance on parental rights as quote, retrenchment by diversion. that is an attempt to reverse the achievements of equality focused movements by concealing that motive with the more politically palatable parental rights. that seems like an unfair volley against conservatives not because it-- conservatives are by bigotry and hate, both sides push back to those in power depending which side of the razor's edge of politics we happen to fall. but it is a cautionary tale for

both conservatives and progressives. rights ought not to be near approximaties for policy preferments or secret agendas. it might be better pour clearer if our jurisprudence allowed for it not to speak about rights at all, rather, we can speak of a moral principle even the state must respect, in the case of parent and child, we can speak of a relationship which is something more than a bundle of rights and by virtue of that relationship, we can speak of the grave duties parents uniquely owe their children, and the freedom they must enjoy in order to discharge those particular duties well. except that the margin, those on both sides of the aisle likely agree that the state has a role to intervene when parents fail and a child will be harmed. if that only works well if our risks of harm have a super

authority. it only works if we agree what the parental rights are for and that's something good for the child. detached from the good of the human person, including those by parents and discharge of their concrete and particular obligations toward their children, rights simply are rhetorical devices in a power struggle, whether between parent and state, parent and child, et cetera. it doesn't matter, i think, if we shift our lens from parental rights to children's rights. we have to have some measure by which authority determines the con at the point in time of the right if it's not to devolve into sheer autonomy and power struggle. i'll close, without a restored national discourse which which we can tackle hard questions together in light of shared criteria, we may eventually find ourselves strange

bedfellows, but at the end of the evening we sleep in separate bedrooms. thank you. [applause] >> next, we'll hear from marcy hamilton. >> good morning. >> good morning, i'd like to thank aei especially naomi for organizing this, i would start by saying i think this conference is misnamed. there is no such thing as parental rights without talking about children's rights. that's both true in the constitution, the two p's, right, pierce versus society of sisters. we should not have quite the broad interpretation that we've heard, but does give parents the power to decide on an educational setting within the context of requiring education period, but principles v massachusetts, in which the supreme court clearly said in their own words that parents may make martyrs of themselves,

but they may not make martyrs of their children in the face of child labor laws. so that there's no question that children have rights as persons under the constitution. as someone who has now worked over 20 years fighting first clergy sex abuse and now institution-based sex abuse across the country, there is no clearer fact than that adults prefer and protect adults. it is uncanny how fast you can have a conversation about children that turns to the interests of the adults almost immediately. so where can we turn to figure out what this baseline would be that liz bit was alluding to? it's my view in my scholarship that joel feinburg, who is a philosopher, stated it best.

children have a right to an open future. that means parents and the society together have an obligation to deliver a child to age 18 not having been abused, not having been medically neglected and not having been denied vaccines and also educated. at a minimum day they're after 18, they can decide to have no medical care again. they can decide never to be educated again. they can't decide to abuse others. but let's go into the realm of facts instead of politics. i'm really not interested in politics in this, i'm interested in the protection of children. you know, one of my first posts on clergy sex abuse lo these many years ago, i said the catholic church was not doing the right thing.

bill donahue of the catholic league immediately e-mailed me and said you are anti-catholic. and i said my cradle to grave catholic husband would disagree with you, i'm not anti-catholic, i'm deeply anti-child pay-- abuse. and he said touche'. let's talk about children, abused, not abused, educated, not educated, medically treated. when we fail children in these three arenas, on the abuse side, 30 to 40% of child sex abuse comes from within the family, that's a good third comes within the family. this is the last frontier, while we see headlines about institutions and making very good progress toward holding institutions accountable, parents continue to be behind

the curtain rarely prosecuted and children continue to be abused. one in five girls and one in 13 boys according to science, will be sexually abused by the time they're 18. at one point, it was one in four and one in six foe modest improvements, but it's about 14% of our children are going to be sexually abused. what does that mean for larger society. that means that the larger society suffers because the abuse results in trauma that results in ptsd, depression, substance abuse, inability to thrive in relationships and worse, suicide. the cost to a victim, we'll talk aei's monetary terms, cost to a victim $300,000 over the course of their lives if they're sexually abused as a combination of medical, psychological problems,

combined with lack of earning potential. if you look at aces, the childhood impact science, you see that you have lasting reductions in employment and in employment success over the course of their lives. 13 to 19% lower earning for children who have been sexually abused than those who have not. i understood at the opening that naomi was speaking broadly about philosophical and religious support and that we should support parental rights because of religion and morals. i think we need to be very careful about that in the child sexual abuse arena. there are no more adamant opponents to children in that arena than the religious groups. the lobbyists against the laws to protect children are coming from the catholic bishops. they are coming from the more mons.

mormons, and let's be realistic, let's not be pollyanna's. child sexual abuse is buried in all society and adding to the rights, child sex abuse harms society generally. with respect to child vaccines. we already have done an experiment in learning what mandates mean. what does a mandate without a religious exception and without a philosophical objection do for your society? well, mississippi and west virginia until now can tell you. it means they have the lowest disease rates in the entire united states. neither mississippi norwest virginia had any exceptions to childhood vaccines, and they had eliminated to a large

extent the childhood diseases. they're pushed hard for exemption. there's erroneous right in mississippi that there's exemption for vaccines. the cost to society of not providing routine mandated vaccines for childhood diseases is huge. from 1994 to '23, the best statistics that we saved 780 billion in direct costs and 2.9 trillion in societal costs due to vaccinated children. that means children who not only were vaccinated, but also did not, infect their mothers or elderly grandparents who are most at risk from dying from the childhood diseases. with respect to vaccine preventible illnesses, vaccines

are a public health priority because once a child has these diseases, they are more likely to have long-term adult health care programs. they're more likely to have diminished capacity and they are more likely to have lack of economic productivity. you can talk to anybody who has had polio. you can talk to the people who have died now from measles from unnecessary outbreaks from people unnecessarily or not vaccinated. let me add to that. medical neglect is a serious problem and there are states right now, not a lot, but there are states right now that permit safe healing exceptions. in the state of south dakota where faith healing organizations flocked because they know longer found washington state and oregon as

comfortable as they liked, you have groups that have more infants in their cemeteries than adults because they don't believe in any medical care. so what that means is that a child whose life can be saved with a penicillin shot is not saved for religious purposes. now a year-- i guess it's two years ago, one of the republicans in the state, and i'm-- this is just who is saying it, i'm-- literally i couldn't care less about politics, the republicans stood up and said-- the reason that these children are dying is because god has called them to heaven. i'd like to say as a presbyterian that my god does not call infants up to heaven when they can be medically treated with ordinary medical treatment. so, one of the things you have to think about when you bandy around this concept of parental

rights, how much harm are you willing to tolerate, both to the child, to the family and then to the community. with respect to education, a lack of a minimal education results in lower lifetime earnings, higher unemployment, and economic instability. it is a threat not just to democracy, which is the verbiage of the last election, it is a threat to the economy when children are uneducated to the point by the age of 18 where they can contribute. so let me just close quickly by saying that there are entrenched children's rights that are buried in this obsessive talk about parental rights and those rights include entrenched due process rights against abuse. children, it was not illegally to sexually abuse a child until after it was illegal to abuse an animal.

the society for the prevention of cruelty to animals was founded almost a decade earlier than the first society for the prevention of cruelty to children. so we are very slow with respect to children's rights, but we now have 50 states in the federal government that outlawed sex assaults, sex abuse, child abuse, and letting your child die. those are so entrenched that the due process rights are clear and that children have a right to life to quote the 14th amendment. second, with respect to medicine. jacobs massachusetts vaccines, and the state interest in vaccines can trump the interest of an individual not to be vaccinated. the courts was quite clear on the importance in that case of

eliminating smallpox, polio, et cetera, follows that line. in massachusetts as i said previously, the court said that no parent has the right to make a martyr, whether philosophical with their child, which is to say, no parent has the right if the state has passed a law requiring medical treatment and vaccines to deny that child that treatment. and finally, with respect to the right to education, tinker sets up a right of a child to speak in the school environment. we have more recent theories involving in local, but the key is that the harm to society from the lack of educated children up to age 18 is so well-documented and so extreme that we really must look at it as a children's right and not as a parents' right as in some

states it's been proposed, to pull their child out of school at 13 after they take a quiz and put them into labor for the rest of their lives. thank you. [applause]. >> thanks. next we'll hear from walter. >> thank you, adam. and thank you naomi and aei and let me recommend naomi's article this past summer which well-lays out some of the conflicts and tensions in this area. she invited me here to, i think, give a robust libertarian case for parents rights, which i will do. even though when it comes to practical policy on the ground, naomi and i often come out in pretty much the same place and you'll see this again and again, which is that first principles often take a rather wounding path to policy recommendations. well, yes, the world has

changed on parental rights. yes, they are stronger than they used to be and i'm going to argue that that's a very good thing. when i was growing up home schooling was illegal most places. i'm not just talking they made it bureaucratically difficult they just didn't allow it at all. since roughly the 1980's, it has been legal as recently as 2008, a california appeals court said, well, maybe it has to be legal, but parents should not be allowed to do it unless they have someone with teacher credentials and judged by the state come in and do it for them and that was overturned. but it was fairly recently illegal and also, within living memory because i've talked to a lot of people, you could lose custody for your kids for being gay, you could lose your kids for marijuana convictions, lots and lots of thanks that were legalized and recognize the parents were perfectly capable,

could arrive in cps arising and taking their kids away. we're lucky, society made progress that they don't do these things and there's a lot for governor christie, what he said. he wasn't the first you remember in the debates about 200 years ago about whether or not the english king should be viewed as a father to his people. mccauley, one of my favorite classical liberal writers put it almost the same way, we might expect a monarch to be like a parent if a monarch knew his offspring as well as a parent knows his or her child and loved the subject as much as the parent loves his or her child. that's not going to happen ever. which is why you can't expect the government to behave like a wise parent. the government is for other purposes, it can do some other things well, it can't be a

parent well. i visited orphanages and i would say even if they hire good people, the government can't be a parent well. so, behind the growth of parents rights have been the very diverse ideological coalition, often libertarians find themselves on american conservatives, i think there's a reason for that which i'll get to in a minute. you know, it isn't just religion, as we go back through the cases, that are monuments in parents' rights, yes, there's society-- yes, wisconsin v yoder, but before there was meyer versus nebraska and we don't hear as much yet, that was the first. and nebraska bound instruction in the german language and just as in pierce versus society of sisters was the influence of the ku klux klan and they were trying to drive out of the

state by hook or crook, and in the heat of world war ii, i call a bigoted law, and there's nothing wrong with being instructed in german if that's what the community speaks. and not only an enumerated right, along with pierce society of sisters, because we love unenumerated rights and recognition that courts need to and can endorse the rights, and did so without a religious component. obviously in wisconsin versus yoder it got explicit, they were applying religious liberty doctrines to the right of the parent to educate. it was certainly not far from the surface in pierce versus society of sisters, but it stood along, this is not a religious issue, this is a question whether or not the state could substitute for the

parents' judgment, and the court ruled that it could not. that line of cases continues in good health today. again, i'm glad it does, and i'm glad the area is ruled off limits for the government. now, the other struggles happened one by one. and let me get on now to a point that i mentioned, which is that the-- there's a reason why a lot of these things took a long time to litigate and restored to parents not some new rights that they had never had before, but restored them the right that would have never been questioned until modern times. rights on schooling, rights on instruction and the like. and that was because the progressive movement had invested in the government an enormous amount of confidence that it could act in local

parental. it was progressive movement that brought in a big, big way that the government could hire experts who could determine what the best interests of the child were in education and a dozen other fields in life if the family were living in a sloppy, disorganized way, government housing inspectors could come in and tell them to shape up or lose their children and that's happened in countries like sweden that went a few jumps more. i think had a sweden has pulled back, but in sweden, if you were too -- they could be taken away. there was nothing, the government was more confident, competent than parents. well, those were progressive ideas, they were not original founding american ideas so it's not surprising that both conservatives and libertarians saw through them quickly and did not see through the expertise of the government and here you get into the ultimate, i think, libertarian position,

which is know the somehow imagining that parents can't violate children's rights. presents can commit crimes, torts, whether or not you call them torts, but the question is the competence of the government and if you agree with me that the government just isn't very smart about this, even if it makes the right decision it may take five years to do so while the child goes through multiple placements. if you agree that the parent is more likely, in the overwhelming number of cases, to know and to love their child in a way that the government can't, then come along with me to the parental rights side. you'll find that most of the public is there, too. thank you. [applause] >> thanks, walter, and finally we'll hear from james.

in addition to folks in the audience here being able to ask questions later, folks who watching online on the live stream can do so as well. if you go to the page on our website, the ways to submit questions by e-mail or by twitter. >> i'm grateful to be here and i want to talk about high level cons concepts and we're dealing with a line drawing, and complicated area and i'm going to set aside the divorce custody context, where you might have duels parental rights issues. obviously, i'm sure you all have the same reaction that i did to marci's stats and they're horrifying. majority of parents love their children and treat them well. there are two problems with line drawing, first when there's a conflict in rights

and interests and number two, what to do when there's such a conflict. for me, a ven diagram is helpful. one circle representing parental rights and the one circle children's rights, if they perfectly overlap, parental rights would always support and never conflict with children's rights. and if there's no overlap, i think most people would reject those two extremes. there are times when there are parental conflict and when parental rights can be used against the best interest of the child. the other extreme is also problematic because often parental rights actually support children's rights. that's because parents almost always know their children better than anyone else. parents usually are more invested in their children and interested in their welfare than anyone else.

parents have the primary duty for the care of the child and the child-parent relationship is generally the most important relationship the child has. there are also some societal reasons know the to review child and parental rights often in conflict and that is protecting parental rights is a way to protect the family which i would argue is the most fundamental unit of society and the most important of those mediating institutions or little platoons, depending whether you like tocqueville or burke. upon which our society and our constitutional system depends upon and which our society and constitution do not create. so, knowing where the line is it not drawn, perfect overlap, no overlap is a little helpful, but it doesn't necessarily tell us where the line should be drawn. how do we recognize how there's a conflict. one option is when a child says so or does something that indicates there's a conflict by expressing a desire for something other than what his

or her parents want. that's probably arguing that's neither necessary or sufficient. children don't always grasp what's in their best interest and that can cut both ways. a child may agree with their parents, but actually the child may be wrong it may not be in their best interest what the parents are advocating, but a child could also disagree with their parents and also be wrong. and sometimes children really don't have an opinion. the only other option then is the state. the state decides when there's a conflict. and i think we have to be careful there about having the bar too low for a state actor to declare a conflict. though where the bar is may be educationally dependent. maybe where the bar should be for child welfare versus education, versus medical care should differ, depending on the consequences of perhaps getting that wrong. so fleshing out when the state can act, can declare a conflict and act on it is, of course, the rub.

we're all looking for the goldilocks middle that's just right. i want to say two things about types of conflicts. one way to think of it, one type of conflict is when the state actor thinks there's one and the parent learns that the state actor deems there's a conflict. but the other would be when the parent doesn't even know that the state actor is determined there's a conflict and acted on it. we see this ladder often in the educational context where school officials make decisions that may potentially infringe on parental rights without the parent knowing that that's going on and this latter conflict where parents are kept in the dark over this judgment by the state that there's a conflict and a need to act, seems problematic. deeply problematic to me except in emergencies or for temporary periods of time when that may be necessary. we don't really have a panel on education, so let me just say one quick point on that and then i want to move into

constitutional doctrines. walter talked about some changes in parental rights in that context with home schooling and the like and can recognize they can take them out of school and put them in private school to home school their kids if they don't like the public school curriculum. i'm not sure that's fully solved. the issues with parental rights and education, just for a very practical reason, that, you know, 82% of the children in this country are in public schools and most people can't afford private school or afford to have one parent quit their job and home school the kids so i'm not sure that that's a financially viable solution to tell parents that, you know, that they have those options. it might also raise an unconstitutional conditions doctrine. of course, on the other hand we can't have the line drawing

problem. on the constitutional doctrine front, right now as was talked about already, we have substantive due process seen as a source of parental rights under the constitution, stemming from the 14th amendment and as was pointed out, there's a lot of lack of clarity and certain degree of confusion over that. a fundamental right under substantive due process, strict scrutiny, which is the highest degree of analysis and the most protective of rights. and yet, we don't generally-- it's usually strict in theory, but not strict in fact in a lot of the parental rights cases. perhaps that's because parental rights are a little different than the other rights recognized in substantive due process and those tend to go to individual autonomy, but parental rights, you have the

child's rights and interests, sometimes juxtaposed in that scenario, so perhaps, that's why courts have struggled with this or at least applied it in a way differently than we usually see with fundamental rights under due process. so it might be helpful for the court to provide clarity on that. is a substantive due process parental rights, is it the same as other substantive due process parental rights or if not, how should we be thinking about it. some people dissatisfied, pose some alternatives. some originalists and justice thomas being a leading example of this, says that substantive due process bunk and we should be under the clause, that's under the 14th amendment. i'm not sure how that would play out because unlike due

process, which attaches to persons, persons have a right to due process. privileges or immunities attached to citizenship so it's privileges or immunity of citizenship. it's not clear that parental rights are privilege or immunity, and they're certainly not enumerated in the constitution and so, it seems like a little bit of a stretch to put parental rights there given the citizenship angle. michael ferris argued we should get rid of somebody -- due process for parental rights and a parental rights doctrine which he would have it all done under procedural due process. procedural due process doesn't apply to general legislation.

if the state legislature passes some law that you think infridges parental rights, you generally can't bring a procedural due process it to that. you have all the that you're going to get, the supreme court decided if generally if the legislature has just done their job and you had a chance to vote for them. so i'm not sure that that's necessarily going to solve the problem. there's analogy, i don't think she was necessarily making the argument that we should import legal doctrine analy, anal guised this, and they will go into a sovereign nation and take over because of the way that i think so this are going and i'm not sure there's clear

standards for such thing other than perhaps a vote for the un or countries to do that so i'm not sure that's necessarily going to solve the line drawing problem. and i'll leave with the thought i briefly mentioned before, again, i think the family is the fundamental unit of society and parental rights and children's rights are often not in conflict, but we have to figure out the scenarios where they are and i would agree with marci, instances like abuse are heinous and should be-- we should not have a society where that occurs and we should make sure that the law recognizes that, but the devil is in the details, right? and a family too regulated is unable to function properly and

our society and community depend on families functioning properly. thank you. [applause]. >> each of the initial presentations have given me a few things i'd like to ask about. before i jump in with my own questions if there's anything that any of the panelists want to react to immediately anything that jumped out you'd like to put on the table right away, i'm happy to start with that. >> i would-- >> surements i would briefly say to walter, there are organizations that have begun that are in response to failure to educate and home schooling, outlining the harms that have been done in the home schooling context and failure to educate. one of the leaders is the amish heritage foundation which looks at wisconsin v yoder as one of the most child harming supreme court decisions in history. so these are very smart people who educated themselves after they left the community having not been educated and the

statistics on the harm done in some of the home schooling situations are pretty serious. >> in the absence of the absolute political issue we'll depend on whether it's strong or not and that's one of the reasons we-- i trust the idea of individual rights more than i do states with a teachers union could pretty easily-- >> well, as usual, you've averted to adults and i'm talking about children. >> okay, let me mention while we're on that trope that periodically people who suffered neglect or abuse as children or have terrible child hoods are quizzed about whether or not they think they should have been taken out of the house and overwhelmingly as i understand it, the answer is no, i don't think i should be taken out even though my mother as an alcoholic, even though my

father had serious mental illness because she's my mom, something to think about. >> unbelievable, that's not the science. >> let me start at a high generality, let me start with elizabeth and walter, elizabeth you said i'll get the specifics wrong, but we can't grapple with the issues of parental rights without directly grappling with what's best for the child. you put it better than i did. but that all of these debates around rights and powers, they really do sort of revolve around a central question about what is actually in the best interest of children specifically. walter, in your opening remarks you said and again i'll get it slightly wrong, but you said so much of this really reflects one's view of the competence of

government, on the general level, whether we're on the side of the parents or on the side of government or civic institutions that are trying to go past the parents to protect the kids. so much of it comes down to your underlying sense of the competence of government relative to the-- maybe the competence of the parents in deciding what's good for the children. i would love to hear further thoughts on that, 0er's reactions to the two statements, the debates around the law are just echoes or downstream of your view of either government or a specific sense of child welfare. elizabeth, did i do justice to the way you put the point originally? >> yeah, i mean, i think i would say, you know, to kind of pick up on what marci said, which is to say that when speaking about parental rights, we shouldn't be speaking about the interests of adults, right? we should be thinking-- and that's why i think sometimes the right language is not super helpful because we're

not talking about the power of parents, right? we're talking about the needed freedom or authority of parents to discharge their obligations to their child well. and so, i agree with marci, in the sense to the extent that we're talking about parental rights without thinking about what they're for, which is for the care and the education and the upbringing and the formation and the love of their particular children, then we're sort of missing the boat entirely. but i do think to sort of pitch it as -- in the rights language, parents rights versus children's rights and you know, that we're automatically putting ourselves in a place where they're sort of naturally in tension with each other which i think is probably the wrong place to start. could they be in tension with each other? sure, but that's not the right place to start and then i guess just to finish that thought,

just to say that i do think though where the line drawing is difficult, or contested, what constitutes harm, et cetera, what you're going to see is conservatives or libertarians are going to pull off if i'm going to err, i'm going to err on the side of the family or the parents and the others, lean on the side of the state and experts. politically what you'll see. >> and walter, first of all, in remarks, made a point which i agree with the best interest of the child and so-called standing alone is vague and also, would i say naturally empowering for the decision maker whether it be a judge or agency that gets to decide what is the best interest of the child is. all evidence has to be considered. everyone has to testify and

everything for influence the child, and then you put huge amounts of authority in the decision. now, this to me is exactly what has gone wrong in areas from contested custody cases to some more liberal standards for taking kids out of the home. you don't want that because of the uncertainty, because of the peril into which that places everyone's rights. what is the opposite of that peril? well, it is things like presumptions like the primary caretaker presumption, custody, or the standard mentioned in naomi's paper somewhere i think, which is that to take a child out of its home, there has to be a serious and well-demonstrated risk of severe bodily physical to the children and instances of harm, like i would argue harms speech

on the internet, to the government to take away people's -- people don't want their relationship with their child to be a matter of endless administrator balancing. they want to think, you know, we belong to each other and though that has to be ruptured in certain cases because of circumstances, we don't want feem people to-- >> walter, i'm going to get back later to the worth rights. and marci, rights downstream of what's in the best-- what's good for a child generally or also, is a government competent and actually discerning at implementing the sense of what's best for the child? >> the science about the projection of children is getting better every day,

execs-- extraordinary, and what children need to be protected from. i do think that that legislation can be very effective and what i find working on child sex abuse legislation in congress, it's bipartisan, they're interested. you know what they're interested in the most? the science. how does this affect a child and how should we do this and the same is true in the state. but i think the rights moniker is absolutely necessary with respect to the child. there was a time not that long ago when fathers owned their children as property, literal property for the purpose of labor, and so, enter the industrial revolution and children are working and dying in factories, et cetera, that is what triggered the child labor laws and the compulsory education laws. so those two are the backstop

against a parental right that did never consider the best interest of the child and instead, considered the child as a source of labor. i'm never going to disagree people love their children. yeah, i love my two children, but that's not the point. that's not at all the point. the point is, is the child in a scenario where they can be protected from harm and how in the united states do you protect yourself from harm? it's called the law. and if you don't have legal protection as a child being harmed, you can't be pulled out of the horrendous home. ...

>> james, what your thoughts? >> -- not quite yet. >> i want to follow up with you. because i was thinking through in your presentation, on questions of abuse, i'll put it bluntly. i'm catholic myself and thinking of abuse of children, if your abuse within the church of children is horrific and demoralizing. thinking through neglect becomes more challenging, right? you told the story about the bears return the refrigerator around. that's horrific. of course neglect at some point becomes a bit more difficult to draw lines on, right?

argues a cartoony example. at at some point isn't neglectful to get my kids were interested, more focused on music or sports than stem? there might be an answer to that, i don't know, depends on how we are measuring it. but it's very hard to define neglect with specificity once we get beyond the obvious cases. how should we think about that term, less so abuse but more neglect? >> fair question. but the standard for neglect tends to be the child is going to be either permanently disabled or die in the medical neglect context at least, right? so the cold in denver that believe only in feeding babies lead is so older babies died -- cult. that's neglect, right? there's a debate right now in the united states which is

unfortunately veering off its high to the was neglect with respective vaccine i view the failure to vaccinate except in medical exception as neglect. the mandate view it as neglect. there are those who are now saying no, parents rights should take them out of that. but it seems to me we have to keep circling back. if you want to figure out where the law should be it should be where there is harm to the child, very serious harm. other than that parents get a lot of latitude. we also have a lot of responsibilities to educate parents because a lot of parents don't know how to protect the kids from the internet. they really know how to protect the kids in sports. so there's a big education needs if are going to have talk about parents rights there needs to be informed parents. >> i guess my question is off base to begin with.

i didn't realize you were talking specifically primary in terms of medical neglect, not economic neglect -- >> medical and food neglect. >> and educational also. >> and educational neglect as well. states have education laws which were undercut by yoder but you're it was about a religious entity, right? it relented in the footnote that the amish never break the law. they are a beautiful people that i've never broken the law that's just flat-out false. and so yoder is problematic but neglect is a serious problem with respect to education as measured by the impact on the larger economy. >> ask about the term rights, we alluded to that earlier. i was thinking through much of the presentation when we're talking about parental rights, i do start to wonder whether

that's the right term to begin with. no offense to the title of the panel. but we're talking concretely about the stuff of parents rights we seem to be talking about power or change this term order, sovereignty, or responsibilities here walter, it doesn't quite strike me as classical sense of rights because we are talking about relationship between parents and children, the authority, almost the authority of parents over children. let me push back on the rights. why do we talk about this in terms of rental powers or sovereignty? >> sometimes we do. sometimes make sense to talk in those terms. i don't mean to be too late but when it was but said the consequences about law, a peer group entered into a sheer power stroke i can remember trying to raise a three-year-old.

but to be more serious, right i think direct us towards the minority the situations in which there is a legal move to curtail the parents ordinary relationship with the child whether by taking a child away or perhaps by some sort of -- that's what rights comes in. a lot of the situations that are important are not better and less in terms of rights and i would say we talked several times on questions of parent in schools compared to disapproved of curriculum, parents who disapprove of vaccine requirements. i would say any school system i chose for my kid had better have a vaccine requirement but i understand that the whole think about compulsory public education is it -- it's not always rights.

the fundamental right when it comes education, the parents ought to be protected and sometimes helped in the village organize and better reflect their values here but actually i come out in in a more liberal position on a lot of the questions of whether schools, public schools have to change because conservatives want something different out of them. no, they don't have to change. >> in your remarks you look to children's rights. could you sketch out in a few sentences, can't do justice to it, but what the children's rights are in the framework of parental rights? >> they turn up in a couple of different ways. when a child gets old enough, we talked to wish it used to be called emancipation, i believe that of a modern term about more mature children, then libertarians traditionally are pretty enthusiastic about making sure there are strong

emancipation rights in part recognizing the parents will often not see is what the child wants and the child needs about freedom. obviously their children getting enough to prove the site of fort i would say to some extent ever, ever since the shadow cast by the fast parents can commit crimes including -- but also violence against the kids. children's rights even though the child will not necessarily be proceeding in court as the prosecutor subdeacon the child's rights were violated in the parents committed that crime. >> elizabeth? >> i wanted to jump in on this question of rights. i think invoking parental rights never help me with my three-year-old, so that's probably not very effective there. i do think, i'm not at all kind is a we rights as as a kind f legal construct or whatever or

as a reality in our constitutional jurisprudence. just pressing back, the right conversation is much broader than this panel. i'm kind of push back in this political discourse because when we do talk about parental rights we can tend to lose sight of what they are for, which is the child. so i think speaking of it in terms of that relationship is important and that's the emphasis i meant to make. >> anything to add. >> was no. i like elizabeth's connection. i think in rights discourse throughout any kind of right we lose sight of the fact there's a duty attached with the right. so not losing sight of the duty. >> one less question from before we open up to the audience. i wouldn't be doing my job as a member of the department on social cultural constitutional

studies to ask at least one institutional question. we have talked broadly about the state throughout this conversation. from time to time with focus on judges or agencies or legislators. very probably i would ask everybody how much of these legal questions really turns on whether the governmental decision maker is a judge or an agency or the legislature? obviously it depends widely on the subject, the issue at hand, what are we really talking broadly about the state for we talk about particular kinds of decision-makers who are better or worse of resolving these issues? walter. >> and this question fascinates me because one here for example, about problems of reliant on experts, i like to counter, don't assume you're not going of the problem with any decision-makers, experts can lead government administrations astray.

but court decisions they can lead decision astray. if there's no government agency the experts can -- [inaudible] the worst advice conceivable about the problems they are facing. i guess they face similar things returning to the traditionally, tons of confidence in the courts, common-law courts to handle them rather than agencies. i'm not going to get into what i'm a bit of a dissenter and don't always think court to such a great job at a point out in the 19th century history the development of child welfare institutions, courts look over the welfare of words with no legal. things like that. the courts were drawn more and more deeply into things like appointing inspectors, people look very much like officials but answer to the courts to the point where eventually leave the

british government said look, this is that in the state agency. let's just put in the executive branch. something to think about. >> anybody else? james. >> i have an summit convinced by yuval levin and his new book american covenant that we should probably be running to the legislatures first on these issues. because legislatures can deal with complex issues orderlies hopefully can and competing interest in a way that courts can't. usually it's kind of a zero-sum game in court. you win or you lose. it's hard to create nuance solutions. while there's a a role for co, i think these difficult issues may be best to start and try to seek a a legislative solution. not everybody gets what they want your that's the whole point, before running to the court. >> these questions open themselves best this are broad

legislative resolution real specific regulations or are these very back sensitive questions that is inevitable power has to be somewhat delicate delegated to judges and administrators to results specific aces program the legislature is better situated to do the broad-based survey come to do the commission's come to do the task force. the courts can't do that. the truth is that that the divorce courts, custody courts are absolute mess right now and that routinely children are being given to abusive fathers to the commune is asian mothers. that something the entire united states. children are continuing to be abused i have a whole lot of faith in family court system right now but with respect to legislation, it gives me hope because almost always bipartisan and it's really, they really are focusing on children and trying to do something meaningful.

i expect that in the coming administration. >> not to repeat, i think i liked a great the legislature ought to be the place where these conversations happen in a robust way and it might be why the court including the supreme court hasn't definitively decide all of this force because it will not the best suited to do that. the only other thing i would add you on what started been sent is to say i think conservatives and perhaps libertarians have abandoned many of these institutions, whether it's child welfare or the public school system for political reasons or thinking there to broken or something. i think by creating that vacuum we don't contribute to those spaces and the way he operates i think that something important to keep in mind. >> if anybody here has question raise your hand. there are two microphones so let's make sure they are fed. the first questionnaire and the second question will be right

there. >> thank you so much. will estrada. i have a question, i want to push back on the criticism of wisconsin versus yoga. the first question is the supreme court took pains to say the compulsory laws are important and so that's the first question and want to get your thoughts on that but the second one is ic wisconsin versus yoder as a defense of a pluralistic, diverse system of different views in our country. so how would you square criticism of wisconsin versus yoder against the amish, mennonite old order, kids could stay home with a diverse pluralistic big country. >> there's really nothing in the decision thus talk about diversity and pluralism. the decision is really about waiting the interest of the society and democracy and will educated set of children up to

age 18, and a religious group that said that it did not want to educate their children past eighth grade. i think they clearly made the wrong balance. what they should've said was that there is a compelling interest in democracy having educated individuals up to the end of whatever the compulsory education requirements are of the state. at the way that the opinion is written, it is a literal love letter to the amish. it is offensive. as i said there's a footnote but it was written by warren, some not surprised. the love letter includes this footnote that says that the amish never break the law. that is an absolute outrage. someone who lives in philadelphia and knows exactly what's going on in reading, let me get it, they also break the

law. they also are in car crashes. it's just, it's a silly opinion because it is polly and his attitude toward religion. this notion that you can take the children out at age 14, and that's good for society, has turned out to be false, as a amish heritage foundation is working on every single day. so that's why it's problematic. i also think it's problematic because it's been interpreted well beyond its fact, letting many religious organizations fail to educate their children in ways that have been detrimental to the children and the society. >> next question. >> jennifer jacobs. question for maybe the constitutional scholars. the fourth amendment with regard to social workers has been largely ignored in nearly every state that's passed laws essentially assuming there's a a social worker exception to the fourth amendment in terms of

innovation of property, person and papers. up until 2022 when the pennsylvania supreme court ruled that that is not at appropriate exemption but that hasn't been anything else that is at the supreme court level. any thoughts from constitutional scholars or others up there on the fourth amendment as applied to social workers violating the integrity of families? >> anybody likes walter? >> this islamic area. by dependable than a couple cases but in general the rights against government agency entering the property, it may be that the challenges are more likely to succeed in areas like safety inspections were osha and that sort of thing apart because you have deeper pockets of people into challenges were as

parents are so often in position where they just feel the last person on the property. yes, i yes, i watch this ch interest. it ought to be that government is fully held to search and seizure standards, not that they are relaxed on this issue. >> though at the same time? the parents in an abusive home are not going to protect the child. and the facts do need to be known. so the needs to be a balancing here. the children, that child sex abuse victims least likely to be up to come forward are in a family because families both threaten those children and families want to stay together and the state often irrationally wants to keep them together at all costs including the child's loss. the child can't possibly have

their full voice heard unless there is some kind of state intervention. >> canada follow-up? >> sure. >> not disagreeing on the ideological goal of finding an abused child and rescuing them, of course without a warrant there is a great possibility of state harm and that kind of the whole purpose of the fourth amendment. so in the same way that we require a warrant except for exceptional circumstances when going after mass murderers, rapists, pedophiles, it's including the white the state of whether courts have been largely silent on why those rights would not apply to the family when great harm can come from invading integrity of an innocent family. >> i don't come i i can't, i t know how the court would rule comes up in court would rule on

that particular case with respect to the fourth amendment but i only want to set think it's actually even more complicated than that in the sense that the entire child welfare system from a knock at the door to the reporting systems and how you get your name off that system if it were wrongly reported are found to have not been, you know, to of not filing the law, et cetera, like threat the entire thing these are questions, write, that a court addressing parental rights broadly needs to be thinking of. >> that ended and underref child sex abuse. >> under report as per one less from me to wrap things up. in this conversation to start things today so many of legal issues have arisen from now famous debates over religious education. teaching of german in schools. later things like church sex

scandals and so on, homeschooling, and most recently debates around the vaccination requirements and the content of public education. we didn't talk about this on the prep call but it just occurred to me, as in the want to venture a guess to what the next context of these sorts of legal debates will be? weatherby new frontiers, new issues emerging that we should start thinking about ahead of time? chris christie quote involving gender and transgender therapies, i suppose that will be big in the next ten years. any sort of other new context for these debates around the rights of children, the rights of parents, the power of the state? i guess i'm kind of spring on folks. >> we will be hearing and later sessions about more gender change debate.

not only that been in other areas where culture wars are playing themselves out first as discussions about children, not only children's welfare is at stake but both sides are accusing the other child abuse. i think it's best to child abuse are not itself new but i would predict and you already are seeing it in more obscure areas but on things like curriculum in schools, you are getting perilously close with both sides charging each other with child abuse. maybe it makes sense from the standpoint of the contestants but the implications on on a curriculum fight in your high school makes you abusive enough that there should be an investigation. i would just say please talk off

a little bit. >> marcy, what do you see over the horizon? >> i see the biggest warfare about the trump administration and the rise of christian nationalism as a war against lgbtq. both children and parents. and so we are already in a position where title vii is now protecting employers, there now permitted to fire. because they are gay simple because of their religion. so now that we've reached that point, the question is how far the rest of the system will go toward dehumanizing lgbtq and a special lgbtq children. and trans is a tiny, tiny percent of that whole scenario. >> james. >> this is only partial response at your question. i don't know that we can fully

grasp everything that may be on horizon. there may be things we are dealing with now that ten or 15 years ago we did not foresee like i think a lot of the focus here is you may have heard the famous thing of building a fence at the top of the clip for putting an ambulance at the bottom. were talking a lot about a villages i think today, and the family has to succeed -- about ambulances. we have to have healthy families in this country. that includes were children, that means were children are safe and healthy. and so focusing on that fence at the top and figuring out ways to have healthy function families will alleviate some of the need for these ambulances and ank it's crucial for our republic. >> you got the first work today. you get the last word, to. >> i don't want to speculate on new ideas for fear of giving folks ideas on what to argue about but i guess i would just

say i think the panel discussion highlights something i said in my initial remarks which is simply that what we at root disagree about the need as a nation to get better about talking about is what constitutes harm in the first place. it's clear we disagree about what constitutes harm and, therefore, it's difficult when to draw the limiting principle and all of the legal issues a follow. >> before we break a what is a we'll take a five-minute break in between this panel and the next panel so that things can be reset. but please join me in thanking our speakers. [applause] [inaudible

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