Government alone is where law can be found. At least, the American people generally think so. That the state holds a monopoly on the making and enforcement of law is a reasonable, if vague, inference from the message of lawyers, scholars, journalists, and activists, all of whom focus on the works of legislators, executives, and courts. That is the only kind of law that appears in the headlines or the fundraising letters of activist groups. Government alone is where law can be found.
Among theorists of law, this view that the state has cornered the market is usually called positivism. At its historical extreme, positivism produces what Henry Maine defined in the nineteenth century as law “stripped of every attribute except coercing force.” Few writers take so crabbed a view today, sensitive as they now are to fuzzy realities such as culture, economics, utility—indeed, to many things (so long as no one mentions God or Nature).
Every such concession to other sources of law obviously makes state monopoly less plausible. Nevertheless, let us take the monopolist seriously and ask the straightforward question: Does law in the United States consist of nothing but the doings of the federal and state systems, or are there regimes that create and enforce authentic law beyond their reach? Do some persons or institutions make and enforce commands that no state or federal government can preempt or forbid?
The answer is yes, even if law is understood entirely in the positivist way, as the sheer authority to command with force sufficient to secure habitual obedience. The parents of underage children form a good example, for they are themselves genuine lawmakers. Because too many people believe that only the government makes law, the lawmaking role of parents has been largely invisible, and this invisibility has practical and unfortunate consequences for American culture and jurisprudence.
The original form of the American Constitution may be read as reserving to the individual states the authority to occupy law's entire province, minus the federal fraction. But language expressly limiting the range of governmental law entered the national text in 1791, as nervous founders added the Ninth and Tenth Amendments in the Bill of Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The most obvious aim of these reservations was to create a hedge against tendencies to monopoly not by the states but by the new federal regime. But, in doing so, they also by implication limited the power of the states to occupy all of the remaining range of lawmaking. Given the references to “the people,” it is hard to read these texts as an invitation to a local monopoly by, say, Oregon or Wisconsin. The people hold ground of their own in both amendments. The word or in the Tenth Amendment even makes the individual state and its people competitors in the creation of law, suggesting that the two could exercise their powers contrarily within the uncharted zone.
Writers on the Constitution typically reduce this potential conflict to the practical point that the people can never actually exercise any powers except through the ponderous amendment process that is dominated by established institutions, themselves part of the formal government's monopoly of law. That argument descends to the level of pure politics—and it is also wrong. There is a discrete and powerful motor here, if we are willing to recognize it: The Constitution contains a clear textual recognition that ideas—and even rules—about the common good can originate outside the state and be entitled to dignified reception (“not . . . disparaged”) when presented for recognition as law.
Indeed, on occasion, such notions have already appeared in the court and have been honored. Many thinkers and judges—especially conservatives—are wary of them, since the “right of privacy,” said by the Supreme Court to arise from the Constitution as an “emanation” from the “penumbras” of established rights, has expanded federal power far beyond the Constitutional limits. These tropes have been objects of satire, but in truth they are images invited by both the Ninth and Tenth Amendments.
Of course, though the Constitution rejects the idea of the state's legal monopoly, the real world might still be monopolistic. And to disprove such a practical monopoly of the state, we would need to find some legal Oz (maybe in Kansas) where, say, Jones makes rules and successfully enforces them against Smith without warrant of legislature, executive, or judge.
The Catholic Church is sometimes suggested as an authentic lawmaker, and, indeed, it sometimes describes itself that way. Under our narrow positivist definition of law, however, the example must be rejected. One missing element is physical force. In America, the Church invokes the sword in accord with the rules of secular government. The bishop may call in the sheriff but only where Leviathan allows. The Church is a voluntary order in which its congregants freely subject themselves to canon law. They obey its rules by choice, which leaves the Church out of our particular conversation.
There are versions of liberalism—in Thoreau, Whitman, Ayn Rand—that offer another possible lawmaker: the will and intellect of sovereign human individuals, subjectively imposing laws on themselves. Again, however, a missing element is force. The idea of forcing oneself is pure metaphor; in any case, it is not the sort of law acknowledged by positivists but more nearly its opposite: Law requires two minds at work—authority and subject.
International law is a far better example, for even many lawyers affirm that nations are subject to some wider circle of authority and rules. Though treaties are specifically legalized by the Constitution (and are thus a species of law that the state makes in a particular way), treaties do not exhaust international law. For centuries, basic rules have bound nations even in the absence of treaty agreements. Positivists are compelled to describe all these international rules as springing from implied mutual choices of sovereign nations. Indeed, they must describe international law this way if they hope to preserve the state as the monopolist of law. The castle of positivism wobbles.
A final example may be the Native American tribes. For some purposes, America deals with these citizens only by treaty. The law of Indian relations may be inconsistent and incoherent. Nonetheless, neither state nor federal government exhausts its content. Here are real lawmakers who make and enforce rules about, for example, child custody that no outside court can review.
That mention of child custody suggests our focus here. We resist the idea, as we do when we think of slavery, of one person having legal authority over another, as though the first were the owner of the second. But imagine that Smith is not the owner but, rather, the parent of Jones, a person below the “age of emancipation.” Under our positivist definition of law, can the parent be an authentic lawmaker for the child? Are there insular systems of law behind domestic doors?
It would seem so, looking at our history and the scattered decisions of our courts. Parents do command and enforce, and, with certain restrictions, the state admits that parents are the sole and inviolable lawgivers within the family. This domestic jurisdiction extends even to the child's mind and body; and parents choose freely from a broad universe of commands and permissions, all of which exceed the will of the state. (I speak of parents, not the cluster we call “the family,” since the family, as such, does not make law. Individual parents make law for the sons and daughters who are their subjects.)
Indeed, parents, as a source of law, are an embodied unity of the three powers that our state and federal constitutions keep separate. Parents are, to their children, a government more nearly complete than the state itself: legislator, executive, and judge. They make and administer rules, adjudicate infractions, and execute corrections. Parents constitute a uniquely integrated system of law, a parentarchy or parentocracy. They may divorce, or die, or put their children up for adoption, but still it will not be the state that rules the child.
By consistent judicial recognition the state needs either permission or an emergency to cross the line of domestic jurisdiction in the exercise of its police power. Recently the Supreme Court held that a surviving parent can narrowly limit visitation even by doting grandparents. Though their intimacy might benefit the child, the grandparents' occasions to see their grandchildren are ruled by the parents, not the state.
None of this evidence engages the mind of the monopolist, who believes that no one can create authentic law beyond the reach of the state and insists that the state provides parents what legal authority they have. Though the state lacks the authority to define or impose any specific version of the good life on children, somehow governments delegate to parents, as agents, the authority to bring up citizens. Both the origin of this supposed delegation and its legal irrevocability are mystical. Yet the claim is often endorsed by state professionals. As they propose government regulation of parental choices, the experts on child welfare and education rest on the state's authority to delegate its authority over the child to another—usually but not necessarily the parent.
One can admire this cheery confidence. What confounds is the fact that such statist actors, in their private role as parents, typically exercise almost exclusive dominion over the minds and bodies of their own children. It is unthinkable to them that the state could replace them in defining the good life. I applaud this private hegemony. I only wonder how, once back at the office, Doctor Suburbia resumes his conviction that his unmonied clients received their parental portfolios from, say, the state of Alabama.
Nothing in American history or law supports this class dichotomy. There is only the practical tendency of state professionals to exact deference from poor parents. No mystical claim of delegation can give the American state powers it has never enjoyed. Beyond the practical exception of the poor parent subjected to the rulings of Doctor Suburbia and his peers, the American parent remains the locus of command par excellence: a regime that creates and enforces authentic law beyond the reach of the state, an institution that makes and enforces commands the state cannot preempt or forbid.
When they act as lawmakers, the nation's parents legislate a wide variety of visions of truth and the good life, and they impose their own regimes to encourage the child's endorsement of the project. Every such private regime will offend somebody, and the critics prove as diverse as the parents they judge. The statist and the monopolist find this pied landscape of mini-monarchies unsettling. The endless variety of family regimes is an emergent product of many forces, but always these include the decisions of the parents, as they regulate their own children. They lay down their own law and produce an American crazy quilt.
This radical pluralism holds even though neither the Constitution nor the Declaration of Independence refers to parent, child, or family. Why were the Founders silent about so fundamental a legal reality as parental authority? So far as 1787 is concerned, the answer is clear: They saw no need to express the obvious. It was not the parent but the state whose jurisdiction needed to be justified by a specific social contract. The notion that the newly invented federal government—or their own states—could redesign the legal relation of parents to their children would never have occurred to them.
It would take, in fact, a good deal of nineteenth- and twentieth-century incubation before anyone needed to worry about the threat posed by parent autonomy. To be sure, the various cults of social efficiency were already abroad, and John Dewey would have his day. He might be having it yet but for enthusiasts in Oregon who, in 1920, took state monopoly of schooling so seriously as to depose the parent altogether. That was a miscalculation, and, in the 1925 Pierce decision that rejected Oregon's law, an agitated Supreme Court reeled off half a dozen slogans that have been dear to champions of parental power ever since. American children may be on their way to personal autonomy, but, as long as they are underage, parents direct their destiny.
The Pierce decision is famously unclear in its foundations. The court was deep in its campaign to rescue the individual from state regulation, and the judicial weapon of preference was the due-process clause tucked into the Fourteenth Amendment. The free-market reading of the clause was soon to disappear, but the civil-libertarian reading continues today, as the Fourteenth Amendment incorporates ever more of the guarantees discoverable in the Bill of Rights. All this has occurred with never an unkind judicial word for Pierce and its broad view of parental authority.
To be sure, many a modern child-welfare case relies on public authority to correct particular parental acts or failures (all of them forbidden as well to the state). But these do not contradict the parents' separate authority. On the child's behalf, the state insists that the child be fed, housed, medicated, and educated, but the parent continues to decide where and how. The judicial rhetoric that describes the roles of parent and state in these cases is always contrapuntal. Every opinion references “the state's assertion of authority” and its emergency role as parens patriae, offset with reminders of “the private realm of family life which the state cannot enter.”
The confounding new element is the discovery of welfare rights of children themselves. Still, even when the law declares that children have rights the state must enforce against the parents, the state's role is only to rescue the individual child. The parent remains the general authority, and, with the exception of children's rights, the parent is law.
These rights do not threaten the parentocracy, which, at least since ancient Rome, has never claimed to be absolute. The state has only duties, children have only rights, and parents have species of both. Parents hold—under our Constitution and in our practice—the primary and broad power to choose and enforce rules for the child. The state's jurisdiction is ad hoc and transient, while the parents' is established and ongoing, being limited only at the physical, intellectual, and moral extremes.
A clear judicial recognition that parents are an independent source of law for their children—making and enforcing commands that no state or federal government can preempt or forbid—would have profound practical consequences. In the years to come, conflicts between agencies of the state and parents are likely to increase, and courts will be asked, more and more, to reexamine the limits of the parentocracy. Wealth and improving technology will constantly present new options for parents. The educational versatility of the Internet is making homeschooling easier and more attractive, for instance, letting more parents remove their children from the direct influence of the public-school system; already advocates of conscriptive public schooling worry that these children will not be properly socialized and given correct information about sex, medicine, the environment, or what-ever these advocates feel they need.
The significance of all this, however, depends less on who wins particular cases than on which of two master images dominates the consciousness of the nation's judges: the image of delegation to parents from the monopoly state, or the counterimage of a sovereign parentocracy.
A proposed state ban on spanking, for example, will raise all the Fourteenth Amendment issues of free expression, religious belief and practice, and privacy . The Supreme Court could hold that in banning spanking the state is merely withdrawing a previous license it had delegated to the parent. Judicial approval of that master premise would endorse the convention of a state monopoly of law, leaving parental authority the creature of the text set in our artificial constitutions.
On the other hand, whether it bans or approves some specific treatment of the child, the court could recognize the status of parental power itself as a thing separate from state or federal constitutions; it would glimpse a “separation of parent and state.” This need not entail a loss of textually supported rights by the child as an individual; it is merely the recognition that the parental authority is grounded outside the formal architecture of government.
As broad images of this sort gradually become conventional, they also become consequential. A basic shift in perception might, for example, eventually extend parentocracy by empowering all families with a practical choice of school. In this epic project, the courts must be given confidence in their role as surveyor of the boundaries between parent and state.
Pierce was wrung out of a particular passage of our constitutional scripture and bears its historical baggage, and since 1925 the Supreme Court has found other constitutional guarantees of unique parental powers. Yet there is something odd in our dependence on all such texts. The parentocracy long predates them, and parents should not have to rely on the current courts' interpretation of the Constitution for authority they have without it. The situation is complicated, for when parents act as litigants, they submit to the courts' authority to delimit their dominion. They seem to stand both inside and outside the Constitution. Though their rule is prior to and separate from the state's, it paradoxically depends on the courts to say so—and the courts themselves are part of the state.
The Ninth and Tenth Amendments assure that unyielded rights and powers of preexisting legal orders are unaffected by the adoption of the Constitution. Though protected by the text, they are distinct from the Constitution in both origin and continuation. The powers peculiar to parents are thus not delegated. In this view, the role of the Court can be explained as a form of consensual arbitration. By contract of sovereign parties, the courts are quite plausibly empowered to decide the scope of legal systems not dependent on the Constitution for their being and authority. The adjudication of the boundary proceeds by consent, practical wisdom, and long tradition. The Ninth and Tenth Amendments authorize courts to decide the state's conflicts with tribes, nations, “the people,” and certainly parents, who authorize the courts to decide with finality. The Supreme Court does not act either as or for the state but as the arbiter of claims of legal sovereigns who need a way to live together by some rule more humane than naked power.
One day the courts might recognize the Ninth and Tenth Amendments as declarations of the deference owed by the state to nonconstitutional but real systems of law. It could respect the preconstitutional, indeed prehistoric, jurisprudential reality of the family. This judicial apprehension of a commonwealth of authorities, new and old, would suit the dignity of the legal supremacies that the Supreme Court must reconcile.
This opportunity will be lost to the justices if they remain stuck fast in the due-process clause and other confusions. What is at stake in recognizing the parent as a lawgiver whose law exists and operates separately from the state's is not the granting of a right—it is the recognition of a power and the responsibility that goes with it. This has been the American practice since the beginning, and in diffuse ways the courts have said as much. Nonetheless, the notion of the state's legal monopoly has become generally accepted and, with it, the destructive idea that parents receive their authority from the state has grown. In rediscovering parental dominion as something independent of, but recognized and protected by, the Constitution, the Supreme Court can restore the Constitutional order and help restore the family.
The denouement may come in an epic clash over the teaching of the good life. In the modern folktale of schooling, the state first makes education come to be and then gives access to all. Perhaps in the Great School Case of 2025—the centenary of Pierce—a state will be called to defend itself against the demand of indigent parents for a subsidy sufficient to enable the exercise of their power to choose schools for their children.
The parents will argue that the state may not, without justification, make education compulsory while frustrating parents' authority by assigning the child to a particular school. The state will respond that coercive assignment to a government school better ensures the diversity of the student body and a common curriculum of civic values.
In point of fact, the state's arguments fail. The claim that the old system promotes social diversity is a historical canard that will not stand scrutiny. The other claim—for a common-values curriculum—is no better, though it awaits empirical test. American society is now locked in conflicts about gender roles, bioethics, stem-cell research, guns, abortion, sports, chastity, spanking, and much else. Many public teachers prudently strive to avoid issues of value altogether, creating an antinomian environment that is the antithesis of a civic ethic. There simply is no values curriculum that could represent the American Mind. The professional educator's displacement of the parentocracy cannot be justified by a nonexistent civics.
And it is precisely here that preemption by the state will be most vulnerable. Where the act that is commanded cannot serve the objective of the commander, law fails. A minimal compatibility of ends and means is required—not the systemic disconnection between ends and means that we now have in state regimes of schooling.
Practically speaking, if it is really to recognize the reality of the parentocracy, the state must create some financial arrangement that will enable, and not frustrate, the parents' authority to educate their children. Doctor Suburbia is on to something. Parental command encourages family integrity and personal responsibility, while the state's conscription of the child encourages passivity and with it a general withdrawal from personal responsibility.
Can anyone argue that the purpose of schooling is being served by that? Can this be law, when one lawgiver deposes another?
John E. Coons is professor of law emeritus at the University of California at Berkeley.