Title : 79.The Parens Patriae Powers: The Underground History of American Education by John Taylor Gatto from archive.org
link : 79.The Parens Patriae Powers: The Underground History of American Education by John Taylor Gatto from archive.org
79.The Parens Patriae Powers: The Underground History of American Education by John Taylor Gatto from archive.org
The Parens Patriae Powers
The 1852 compulsory schooling legislation of Massachusetts represents a fundamental
change in the jurisprudence of parental authority, as had the adoption act passed by the
nearly identically constituted legislature just four years prior, the first formal adoption
legislation anywhere on earth since the days of the Roman Empire. Acts so radical could
not have passed silently into practice if fundamental changes in the status of husbands
and wives, parents and children, had not already gravely damaged the prestige of the
family unit.
There are clear signs as far back as 1796 that elements in the new American state
intended to interpose themselves in corners of the family where no European state had
ever gone before. In that year, the Connecticut Superior Court, representing the purest
Puritan lineage of original New England, introduced "judicial discretion" into the
common law of child custody and a new conception of youthful welfare hardly seen
before outside the pages of philosophy books — the notion that each child had an
individual destiny, a private "welfare" independent of what happened to the rest of its
family.
A concept called "psychological parenthood" began to take shape, a radical notion
without legal precedent that would be used down the road to support drastic forcible
intervention into family life. It became one of the basic justifications offered during the
period of mass immigration for a compulsion law intended to put children under the thrall
of so-called scientific parenting in schools.
Judicial discretion in custody cases was the first salvo in a barrage of poorly understood
court rulings in which American courts made law rather than interpreted it. These rulings
were formalized later by elected legislatures. Rubber-stamping the fait accompli, they
marked a restructuring of the framework of the family ordered by a judicial body without
any public debate or consent. No precedent for such aggressive court action existed in
English law. The concept lived only in the dreams and speculations of Utopian writers
and philosophers.
The 1840 case Mercein v. People produced a stunning opinion by Connecticut's Justice
Paige — a strain of radical strong-state faith straight out of Hegel:
The moment a child is born it owes allegiance to the government of the country of its
birth, and is entitled to the protection of the government.
As the opinion unrolled, Paige further explained "with the coming of civil society the
father's sovereign power passed to the chief or government of the nation." A part of this
power was then transferred back to both parents for the convenience of the State. But
their guardianship was limited to the legal duty of maintenance and education, while
absolute sovereignty remained with the State.
Not since John Cotton, teacher of the Boston church in the early Puritan period, had such
a position been publicly asserted. Cotton, in renouncing Roger Williams, insisted on the
absolute authority of magistrates in civil and religious affairs, the quintessential Anglican
position. In later life he even came to uphold the power of judges over conscience and
was willing to grant powers of life and death to authorities to bring about conformity.
Thus did the Puritan rebellion rot from within.
A few years after the Paige ruling, American courts received a second radical
authorization to intervene in family matters, "the best interest of the child" test. In 1847,
Judge Oakley of New York City Superior Court staked a claim that such power "is not
unregulated or arbitrary" but is "governed, as far as the case will admit, by fixed rules and
principles." When such fixed rules and principles were not to be found, it caused no
problem either, for it was only another matter subject to court discretion.
In the fifty- four- year period separating the Massachusetts compulsion school
law/adoption law and the founding of Children's Court at the beginning of the twentieth
century in Chicago, the meaning of these decisions became increasingly clear. With
opposition from the family-centered societies of the tidewater and hill-country South
diminished by civil war, the American state assumed the parens patriae powers of old-
time absolute kings, the notion of the political state as the primary father. And there were
signs it intended to use those powers to synthesize the type of scientific family it wanted,
for the society it wanted. To usher in the future it wanted.
The Plan Advances
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