parents and masters, children and slaves....

[Michael McConnell]

Rick Garnett's commented that:

> <If a parent, for whatever reason, does not want a grandparent to
> have contact with the child, can it really be said that the child
> has a "right" that the parent's wish is violating?

To which Sandy Levinson replied:
>
> I think the key phrase is "for whatever reason," for this captures
> the view that the child is to the parent as the slave was to the
> master, i.e., subject to whatever whims the master might have as to
> what was best for the slave whose welfare he professed to be
> concerned about.  Why in the world can't the legislature say (and
> thus bring into being) that children do indeed have certain "rights"
> against parental tyranny, one manifestation of which is to cut off
> contact with grandparents without a reasonably g

I think this is overheated. The parent exercises a kind of
trusteeship over the child, for the child's benefit. The master
exercises dominion over the slave for the master's benefit. There is
no similarity.  Before the age of majority, children have rights
vis-a-vis the state, which are exercised by the parent. To grant the
state the power to overrule the parent is to substitute a
governmental trustee for the parental trustee. This does not give the
child any more "rights" -- it just transfers power away from those
who, in most cases, have greater love for and knowledge about the
child, to legislatures and family court judges. I can imagine few
things more intrusive than to require parents to explain to the state
why they think the grandparents would be bad influences on the
children. While there may be individual instances in which the
government makes better decisions for children, it is probable that
in the vast majority of cases it is the other way around.  If there
is anything to a public-private distinction, this is on the private
side of the line.

Obviously, when the family has been shattered by divorce, and the
parents disagree about childrearing issues, someone (alas, the state)
has to intervene, out of necessity. In such cases, the state must act
in the best interests of the child. But we should not accede to the
proposition that the state's notion of the best interests of the
child should be allowed to trump the parents in the normal case. To
be sure, there are extremes where intervention is warranted (as in
denial of lifesaving medical care, or in cases of child abuse), but
the grandparent situation is not one of them.




-- Michael McConnell (U of Utah)