I agree with Jody’s comments on the California homeschooling decision, especially about the plaintiffs perhaps not being the ideal plaintiffs for a test case. Now that the case is on the books, however, it would seem to me that any homeschooling parent in California could sue the state in federal district court, seeking a declaratory judgment that the California statute at issue, as interpreted by the California court, violates the federal Constitution. This would have two advantages: For one, the homeschoolers could choose a more sympathetic lead-plaintiff, and, for another, the action would proceed in the federal courts rather than the California state courts.

Oddly enough for us conservatives, however, since the federal Constitution is entirely silent on the matter of homeschooling, if you argue that there is a constitutional right to homeschool your children, you’re in fact arguing for a substantive due-process right. It’s substantive due process that gave us the right to abortion in Roe and the right to homosexual conduct in Lawrence, and it’s the Court’s substantive due-process jurisprudence that has occasioned the (in my view, fully justified) charge that the Court has sometimes judicially usurped politics.

To be clear, I think there is moral and natural right to homeschool one’s children, but there is no question that arguing that there is constitutional right to do so puts people who are otherwise judicial conservatives in a somewhat awkward position.

Articles by Robert T. Miller

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