With Neo-Marxists who want to destroy the family and brainwash children in their own toxic ideology engaged in a full-scale assault against the American family, it is more important than ever to establish that parents have constitutional rights to raise their children without government interference. A strong argument can be made that what progressives are doing, between overtly sexualizing children and interfering with parental rights, is not merely unconstitutional, but criminally so.

There is a line of Supreme Court cases, starting in 1923 with Meyer v. Nebraska, recognizing that parents have constitutional rights regarding their children. These rights, not found in the text of the Constitution, are still good constitutional law, even though they are spoken of in the case law as being based on the now discredited legal theory of “substantive due process of law.”

“Due Process of law” is a legal doctrine dating to medieval England. It was always understood to be a shorthand reference for all the procedures the government needed to comply with when seeking to strip a person of life, liberty, or property. Those included such things as a jury trial, a right to be informed of the charges, a right to confront one’s accusers, etc. Our nation, with its English legal system at our founding, enshrined the doctrine of “due process of law” in the Fifth Amendment. The legal doctrine of “due process of law” was applied to the states by the 14th Amendment in the wake of the Civil War.

Image of a police officer taking children away is AI-generated.

With the rise of Marxism and its Western variant, progressivism, in the late 19th and early 20th centuries, Progressive justices on the Supreme Court seized on a novel—and ludicrous—legal theory; namely, that the 14th Amendment did not merely protect procedural due process, but “substantive due process.” Mirable dictu! Through this fiction, the progressive justices found that substantive due process unilaterally allowed them to amend the Constitution and pronounce their personal policy preferences as newly minted, non-textual constitutional law.

Non-textual means that the claimed right is not explicitly set out in the text of the Constitution or the amendments. So, for example, a right to an abortion was non-textual, while a right to freedom of speech appears in the text of the First Amendment. This obscene and destructive farce nullified the People’s sole power to amend the Constitution through one of the two processes set forth in Article V, neither of which allows the Court to play any role.

In 2022, when the Supreme Court decided Dobbs v. Jackson Women’s Health Org., the Court did not merely overturn abortion as a constitutional right, but it also adopted a line of reasoning that fully and completely repudiated substantive due process as a viable legal theory. That said, the Court limited its holding to the issue of abortion, leaving to tilt in the wind, for now at least, all of the other claimed rights grounded on substantive due process.

As I said at the start of this post, there is a long line of Supreme Court cases finding that parents have non-textual constitutional rights that the Supreme Court repeatedly grounded in substantive due process. However, substantive due process was just Progressive justices gilding the lily. Even without that doctrine, those rights survive.

The Dobbs Court set out a very restrictive test for finding non-textual constitutional rights. The test is directly tied to the reasons for, and objections to, our Bill of Rights. The “Dobbs test” is whether a right is “deeply rooted in [our] history and tradition” and whether those rights are essential to our Nation’s “scheme of ordered liberty.”

It would be easy to write entire tomes about how the sanctity of the family is deeply rooted in the history of Western Civilization, from the Old Testament to ancient Rome to America’s 18th-century founding. It is a topic so intertwined with Judeo-Christian teachings and English traditions that it was reasonable that the Founders did not state them explicitly in the Bill of Rights.

No one in 18th century Britain or the colonies sought to assault parents and families, taking control of their children and imposing their ideology. The era of Sparta, when the state did control children, had died during the infancy of Western Civilization, while the eras of Marxism and progressivism, when the state would again seek to intercede in families and take control of children, would not be seen until the 20th century.

Indeed, the sanctity of the family and the rights, powers, and duties of parents were so fundamental to English law and traditions, that, in 1689, John Locke devoted an entire chapter of his magnum opus, Second Treatise of Government, to the family as the basic unit of society. The Second Treatise is the foundational text of modern liberalism and, by 1787, was the single most influential work of political science in America. The Founders, almost in toto, wove Locke’s precepts throughout the Constitution.

When progressives pass laws interfering in a child’s very identity, as they have in both Washington and Minnesota, they are violating fundamental, albeit non-textual, constitutional precepts.

Note: This is a topic that truly can take volumes. You can find a more in-depth analysis here.

Wolf Howling is a pseudonym. A former infantry officer and lawyer, he blogs at Bookworm Room.