Judicial Inactivism

I’m still not getting this:

The 9th Circuit Court of appeals has been playing a little bait and switch tactic with their judicial activisim lately. Early this month they [ruled against families](http://www.afa.net/clp/ReleaseDetail.asp?id=108) and in favor of a local school district over whether the school was allowed to ask sexually explicit questions of children in a survey without informing the childen’s parents. However, instead of applying the traditional technique of inventing new rights in order to usurp the role of legislators, for this one they found a way to invent a novel *lack* of rights:

> Writing for a unanimous three judge panel, Judge Steven Reinhardt summarized the courts’ holding, saying, “We hold there is no free-standing fundamental right of parents ‘to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs . . . .’” Reinhardt continued, “We conclude only that the parents are possess (sic) of no constitutional right to prevent the public schools from providing information on [sex-ed] to their students in any forum or manner they select.”

Same old problem. New tactic. By itself, this would be just another call for a new round of anathemas. But the goofy part that I don’t get is that now I’m the bad guy.

You see, because the court decision tunred on a lack of rights instead of an assertion of new rights, their ruling is somehow “conservative,” “literalist,” and “narrow,” while my assertion that the right of parents to raise their own children is as plain as the nose on my face (fully protected by common law, the 9th ammendment, and plain common sense) would require an “activist” decision. [Jeremy Pierce](http://parablemania.ektopos.com/archives/2005/11/conservatives_a.html) has said as much, and now [Eugene Volokh](http://volokh.com/posts/1132189719.shtml) is saying the same.

I don’t get it.

The right of a parent to raise their children is not a new concept which needs a new right to be found in the constitution. It’s not even a particularly “liberal” concept. If, up till now, the right of parents to raise their children, especially in regards to their sexauality, had ever been question, the constitution itself would have never passed. But the question of parents rights to raise their children is actually a red herring. The court cheated by inverting the question.

Rights are always trade-offs. The rights of parents have always been assumed because the rights of the government have always been limited. (Limited government. Ring a bell?) If the rights of the government are *not* limited, then the rights of the people are necessarily limited instead. The court simply turned the question around: instead of asking the proper question of whether the school had any right to deceive parents about the pornographic nature of their questionare, the court did a search in the constitution for a specific enumerated right of the parents which would then limit the government.

Of course, even pretending to look for such a right assumes that the government is the unlmited party while the parent is the party whose tendency to slowly acrue more and more power must be vigilantly watched. But the court looked, and the court didn’t find. Therefore parents have no right to raise their children. Once again the government is protected from individualist tyranny. And in the offing, the 9th Circuit Court gets to look conservative for a change.

What’s amazing me still is the fact that anybody’s buying it. Next time I want to lie, cheat and steal and get praised for doing it, I’ll have to find a way to use a similar tactic.

Author: KB French

Formerly many things, including theology student, mime, jr. high Latin teacher, and Army logistics officer. Currently in the National Guard, and employed as a civilian... somewhere View all posts by KB French