Creature of the State

The Parental Liberty Doctrine focuses on the personal exercise of an individual liberty. The "Creature of the State" Doctrine, however, provides complementary information which reconciles parental liberty with the the federalist governmental structure of the United States.

"Creature of the State" Legal Doctrine

In Pierce v. Society of Sisters, 268 U.S. 510 (1925), a landmark case affirming parental liberty, the United States Supreme Court famously ruled:

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 , 43 S. Ct. 625, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Id. at 534-35 (emphasis added).

The phrase "creature of the state" was not employed by the Pierce Court as a mere rhetorical device. It was a legal term of art, used consistently in many previous Supreme Court opinions, which the Pierce Court consciously invoked in order to articulate a profound legal doctrine. See, e.g., Yazoo & M. V. R. Co. v. City of Clarksdale, 257 U.S. 10 (1921)("The corporation is completely a creature of a state, and it is usually within the function of the creator to say how the creature shall be brought before judicial tribunals."); City of Trenton v. State of New Jersey, 262 U.S. 182 (1923)("A municipality is merely a department of the state, and the state may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the state exercising and holding powers and privileges subject to the sovereign will."); Wilson v. United States, 221 U.S. 361, 384 (1911)("[T]he corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter."); Hale v. Henkel, 201 U.S. 43, 74-75 (1906)("[T]he corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers."); City of Worcester v. Worcester Consolidated S Railroad Co., 196 U.S. 539, 548-49 (1905)("A municipal corporation is simply a political subdivision of the state, and exists by virtue of the exercise of the power of the state through its legislative department. The legislature could at any time terminate the existence of the corporation itself, and provide other and different means . . . . The city is the creature of the state."); City of New Orleans v. New Orleans Water-Works Co., 142 U.S. 79, 88 (1891)("the city, being a . . . creature of the state legislature, does not stand in a position to claim the benefit of the constitutional provision in question, since its charter can be amended, changed, or even abolished at the will of the legislature").

In developing this precedent, the Supreme Court was simply reiterating an ancient legal distinction:

PERSONS also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.

THE rights of persons considered in their natural capacities are also of two sorts, absolute, and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. . . .

BY the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy whether out of society or in it.

1 W. Blackstone, Commentaries on the Laws of England * 119. "BUT, with us in England, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given." Id. at * 460.

By stating that a child was not a "creature of the state," the Supreme Court was drawing a contrast between children and families on the one hand, and artificial legal entities such as corporations and municipalities on the other. Corporations and municipalities were considered to be creations of the state governments, a simple byproduct of a sovereign exercise of state power. Artificial entities owed their existence to the graces of the state legislatures. Within broad limits, state legislators could terminate state recognition of such entities at any time, particularly when the entities failed to act in accord with the public interest. States could, with comparative ease, withhold, grant, limit, or withdraw powers and privileges from corporations and municipalities as the state government saw fit, and prevent such policy decisions from being overturned judicially.

A relationship based wholly upon a legal adoption by a non-biological parent is a creature of the state. Lofton v. Secretary of the Dep't of Children and Family Serv., 358 F.3d 804 (11th Cir.), aff’d 377 F.3d 1275 (11th Cir. 2004)(en banc). Adoption and foster relationships of this variety have no origin in common law, natural law, or constitutional law, and are privileges defined by the state legislatures. Adoption laws are expressions of state police power, designed a mechanism to safeguard the welfare of wards under legal disability who demonstrably lack the benefit of care from a fit natural relative.

Constitutional Significance of the "Creature of the State" Doctrine

Pierce affirmed that functional, biological parent-child relationships were not subject to the whims of state government, as were corporations and municipalities. The Preamble to the United States Constitution long ago established that the Constitutional system of Ordered Liberty was ordained by the "People" for the "People" and their "posterity." Government was considered a creature of the People and their families, not vice versa. Individuals and their familial entities existed prior to government as a component of the "laws of nature" mentioned in the Declaration of Independence, and they delegated their inherent authority to the government to legitimize the collective scheme of governance.

In the Tenth Amendment, the Framers identified three levels of "power": the federal government, the state governments, and the People. The Amendment further indicated that some "powers" were "reserved" to the "People" instead of to the federal or state governments. Residual state power was much more broad than the specifically-enumerated Federal powers, but the Tenth Amendment recognized that state police power was not unlimited (state police power was later constrained even more by the Thirteenth and Fourteenth Amendments). Under precedent borrowed by the Framers from England, the parent - child relationship was considered to be "the most universal relation in nature." 1 W. Blackstone, Commentaries on the Laws of England * 446 (emphasis added). No government, state or federal, was thought to have power to create or control functional, natural, parent - child relationships. Procreation and childraising matters are reserved to the People.

Pierce stands for the proposition that federal and state governments do not have sovereign authority, or police power, or a parens patriae prerogative, which would permit constitutional interference with functional, biological, parent - child relationships. Children are not government chattel. States may not standardize them, control their upbringing, deprive them of their educational choice, or needlessly cleanse them of their ethnic, racial, and religious heritage. Parents may not be heavily regulated, for parents do not derive their authority to operate from any state charter or governmental license. "OUR law con[s]iders marriage in no other light than as a civil contract. . . . the law treats it as it does all other contracts." 1 W. Blackstone, Commentaries on the Laws of England * 421.

This arrangement is quite proper. A biological parent, when compared to the "factions" which control the state governments (as discussed in the "Large Republic" theory of James Madison), has the closest alignment of interests with the child (no two mortal entities or persons can have a perfectly coterminous alignment of interests). In the vast majority of situations, the biological parent is most likely to pursue the best interest of the child, and is most likely to maintain the habits and opinions most reminiscent of those the child will have as an adult. Political factions from across the ideological spectrum, and the government administrations they control, are typically motivated by obvious tangential political and monetary incentives.

Entrenched special-interest incentives lead to the exploitation of children as political footballs. By holding children as a captive audience, factions can use students as involuntary subjects in public-policy experiments. Factions can use power over children to suppress citizens with different demographic backgrounds. Control of the informational environment can also be used to achieve manipulation of long-term voter behavior. These efforts do not further the best interests of the children.

Homogenization of families and children does not serve the long-term interest of the public. Parent and child behaviors are an important form of biodiversity. Monolithic homogenization of child health, child education, and child raising opens the door to catastrophic, pandemic dysfunctions in the coerced population.

Massachusetts Syllogism: An Alternative to the "Creature of the State" Doctrine

Massachusetts has long championed a competing interpretation of the relationship between the parent, child, family, and the state. This approach has gained some traction, particularly in some surrounding New England states.

The Massachusetts syllogism is succinctly summarized as follows:

We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. . . . a wholly secular institution. . . . .

In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State. . . . []Marriage is not a mere contract between two parties but a legal status from which certain rights and obligations arise[] . . . . While only the parties can mutually assent to marriage, the terms of the marriage . . . are set by the Commonwealth. . . . [and] the Commonwealth defines the exit terms. . . .

Civil marriage is created and regulated through exercise of the police power. . . .

In broad terms, it is the Legislature's power to enact rules to regulate conduct, to the extent that such laws are "necessary to secure the health, safety, good order, comfort, or general welfare of the community" . . . .

. . . . Civil marriage . . . . is central to the way the Commonwealth identifies individuals, provides for the orderly distribution of property, ensures that children and adults are cared for[,] . . . and tracks important epidemiological and demographic data.

. . . .

Tangible as well as intangible benefits flow from marriage. The marriage license grants valuable property rights to those who meet the entry requirements, and who agree to what might otherwise be a burdensome degree of government regulation of their activities.

Goodridge v. Department of Public Health, 440 Mass. 309 (2003); see also State v. Hoyt, 146 A. 170, 170-71 (N.H. 1929)("'Free schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so.' . . . . The object of our school laws is not only to protect the state from the consequences of ignorance, but also to guard against the dangers of 'incompetent citizenship.'").

This Massachusetts syllogism lies at the heart of the Commonwealth's general interrelated approach to family law, compulsory government schooling, imposed public health regimes, and eugenics. Each component is key to tightening state control over the other components.

The practical impact of the Massachusetts syllogism is as follows. If marriage is characterized as a religious rite and a private legal contract, the institution is protected by United States Constitution provisions relating to, inter alia, A) First Amendment free exercise of religion and free association, B) Article I, Section 10 protection of freedom of private contract, and C) language affording individual “liberty” under the Fifth and Fourteenth Amendments. Under this traditional legal interpretation, which was in place when the relevant provisions of the Constitution were signed, state government would usually intervene only in response to an allegation of a breach of marital contract, a crime facilitated by a marriage contract, a threat to public welfare (e.g. infant marriage or incest), or a severe harm inflicted upon children born into the marriage.

On the other hand, if marriage is a creature of state law, and therefore a privilege extended by government license, it must necessarily follow that marriage will tend to be characterized as a form of "state action" for purposes of constitutional analysis. If marriage is deemed a state action, the legal focus in connection with marriage is then redirected to A) the First Amendment prohibition against establishment of religion and B) the Fourteenth Amendment concept of equal protection. The private realm of individuals and families becomes entangled in burdensome restrictions which were originally designed to limit only public, governmental actions.

Many states attempt to maintain the fiction that marriage can be, all at once, a religious rite, a private contract, and also a privilege defined and granted by government license. This fiction has inevitably led to the modern condition of legal confusion and paralysis, because the notion of religious rite and private contract on one hand is inherently inconsistent with the competing notion of licensed government privilege on the other.

Complementary Implementation of the "Creature of the State" Doctrine

Precedent subsequent to Pierce, including Troxel v. Granville, 530 U.S. 57 (2000), has clarified that the Parental Liberty described in Meyer and Pierce is a "fundamental" constitutional right. The "Creature of the State" Doctrine remains part of federal constitutional law. As a result, the government has the burden to prove to a court that any government action interfering with parental liberty survives the "strict scrutiny" standard of court review.

The strict-scrutiny test upholds state intervention as proper only if (1) an authorizing state regulation exists that can be justified by a compelling state interest, (2) the means chosen are essential to furthering that interest, (3) there is a clear and present danger to the interest (the minor's well-being) the state may lawfully protect, and (4) the tactic used is narrowly tailored and the least restrictive means of discharging the government's compelling interest.

For temporary or preliminary court orders, such as home searches or child seizures, except for termination of parental custody or visitation, the Fourth Amendment of the Constitution of the United States requires probable cause.

For final court orders, or for permanent termination of parental custody or visitation, clear and convincing evidence is typically required under United States law. Procedural due process is also required for the parents and child.

To the extent that any government refuses to respect these principles, in practical application if not also through formal legal provisions, it will severely harm the afflicted population's human intellectual capital. The society will eventually become psychotic and begin to exterminate demographic minorities. The standardization, if unchecked, will deplete the population's cultural heritage and curtail its ability to innovate.

See also Minimum Standards; In Loco Parentis;Fundamental Right to Direct the Upbringing of One's Child; Parens Patriae.

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