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An American Affidavit

Saturday, October 22, 2016

79. The Parens Patriae Powers: The Underground History of American Education by John Taylor Gatto from archve.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 

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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