The Family Vs. the State: Protecting the Rights of Parents to Raise and Educate Their Children

The Family vs. the State: Protecting the Rights of

Parents to Raise and Educate Their Children

CHARLOTTE P. HOPSON*

ABSTRACT

Societies once almost universally respected the rights of parents to raise and

educate their children, but that era is ending. Governments are increasingly

mandating how parents should raise their children, a troubling precedent. In

order to combat this trend, this Article proposes that the United States should

pass a constitutional amendment protecting the rights of parents. Ireland pro-

vides a model for such an amendment in Articles 41, 42, and 42A of the Irish

Constitution.

This Article examines the U.S. and Irish Constitutions and judiciaries in

order to show why the U.S. should adopt such an amendment. The U.S. and

Ireland have similar constitutional histories and judicial approaches, making

Ireland uniquely qualif‌ied to serve as a constitutional example to the U.S. In

recent years, the U.S. has witnessed a number of recent battles that depict the

need for an amendment such as this. That said, this Article does not suggest

that the route to a constitutional amendment is easy. Instead, it recognizes the

diff‌iculty of passing such an amendment and explains why the attempt is never-

theless important.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606

I. FOUNDING OF THE IRISH AND U.S. CONSTITUTIONS . . . . . . . . . . . . 607

A. Founding of the Irish Constitution and Evolution . . . . . . . . . 607

B. Founding of the American Constitution and Evolution . . . . . 609

C. Similarities and Differences in the Constitutions. . . . . . . . . . 611

II. RELIGION, EDUCATION, AND THE FAMILY IN THE IRISH AND U.S.

CONSTITUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611

A. The Irish Constitution: Articles 41, 42, and 42A . . . . . . . . . . 611

B. The American Constitution: The First Amendment . . . . . . . . 613

* J.D., Georgetown University Law Center, 2020; B.S.B.A., Georgetown University, 2015. My

many thanks to the editors of the Georgetown Journal of Law and Public Policy and my husband for

f‌ielding ideas. © 2020, Charlotte P. Hopson.

605

C. State Constitutions: New York and Montana. . . . . . . . . . . . . 614

D. Constitutional Provisions in Comparison . . . . . . . . . . . . . . . 615

III. THE JUDICIAL APPROACH TO RELIGION, EDUCATION, AND THE

FAMILY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615

A. Irish Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616

B. U.S. Judicial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618

C. Similarities and Differences in the Judicial Decisions. . . . . . 618

IV. A CONSTITUTIONAL AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . 619

A. Recent Battles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619

B. Constitutional Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 620

V. THE PRACTICALITIES OF A CONSTITUTIONAL AMENDMENT . . . . . . 623

A. Diff‌iculties of a Constitutional Amendment. . . . . . . . . . . . . . 623

B. Purpose in the Face of Failure . . . . . . . . . . . . . . . . . . . . . . . 624

VII. ALTERNATIVE OPTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 626

INTRODUCTION

Governments around the world are increasingly questioning the rights of

parents to raise their children as they see f‌it. For instance, last year, a German

court ruled that the state could legally force parents to place their children in pub-

lic education rather than allowing them to homeschool.

1

More recently, a

Harvard Law School professor called for a presumptive ban on homeschooling in

the United States.

2

Troublingly, today the American Constitution offers no enum-

erated protections for parents. However, the Irish Constitution offers a solution.

In particular, Articles 41, 42, and 42A of the Irish Constitution recognize the fam-

ily as the essential unit of society, guarantee parents’ rights to determine how to

educate their children, and protect the rights of children, respectively. The U.S.

should draw inspiration from these provisions and amend its constitution to pro-

tect the rights of parents, while balancing the rights of children. This Article

1. Home Education: Court Rules Against German Christian Family, BBC (Jan. 10, 2019), https://

www.bbc.com/news/world-europe-46823793 [https://perma.cc/9TZP-5QQK].

2. Erin O’Donnell, The Risks of Homeschooling, HARVARD MAGAZINE (June 2020), https://www.

harvardmagazine.com/2020/05/right-now-risks-homeschooling.

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