Allowing the legislature to do things vs. requiring them to do th ings

[Sanford Levinson]

Eugene writes

>        I wonder whether the philosophical difference between Professors
>Dwyer and Duncan might actually be quite big after all.  As I understand
>it, Rick Duncan is just conceding what pretty much everyone concedes --
>that at *some* point the state may intervene despite the parents' rights
>to control the upbringing of their children.  But Jim Dwyer argues that
>at some point the state *must* intercede.  And this of course isn't just
>a matter of abstract doctrine or political theory:  It makes a big
>difference to the scope of parental control over children whether at
>some point the courts will *require* the government to intervene, as
>opposed to the courts allowing the legislature to intervene if it so
>wishes.
>

I suppose this is the DeShaney issue, which certainly is a major
philosophical divide.  But would Rick support, either a matter of political
theory or of American constitutional law, the proposition that the state
should simply remain on the sidelines when it observes a parent engaged in
what all would describe as child abuse.  (Consider the fight being waged
right now to involve the United States in actively fighting against
religious persecution in other countries.  Obviously there is no
constitutional duty of the US to engage in sanctions, but, just as
obviously, the supporters of the bill believe that it would be a good thing
if the US adopted a more active stance when it sees people being treated
unjustly.

Sandy