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The Constitutional ParentRights, Responsibilities, and the Enfranchisement of the Child$
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Jeffrey Shulman

Print publication date: 2014

Print ISBN-13: 9780300191899

Published to Yale Scholarship Online: January 2015

DOI: 10.12987/yale/9780300191899.001.0001

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Parenting as a Sacred Trust

Parenting as a Sacred Trust

(p.23) Two Parenting as a Sacred Trust
The Constitutional Parent

Jeffrey Shulman

Yale University Press

If by “fundamental” we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged first paternal authority, and then parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.” Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,” stated one court, “is that the rights of the child are alone to be considered.” The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power.

Keywords:   fundamental rights, right to parent, child custody, natural right, police power

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