The family came before the state, so why does the state act like a parent?

Ask a first-grader where the government came from and he will not know. Ask him where his family came from and he will tell you: it was there before he was. That tiny asymmetry is the most important fact in political philosophy, and an astonishing amount of modern policy is written as if nobody had noticed it.

The government did not make your family. Your family, in one form or another, made the government. Every state in history was assembled out of households that already existed, already had rules, already raised children and buried parents, and handed some of their authority upward for specific purposes. Reverse that order, treat the family as an administrative unit the state tolerates, and you get a government that behaves like a parent while holding nobody to the standards of one.

I'm going to argue that this is the right place to start, and then do what a good argument requires: give the strongest objection its full weight, because children do sometimes need protection from the adults who have charge of them.

Terms and thesis

The family here means the household built on marriage and parenthood: parents and children, with the extended kin around them.

Prior means two things. Prior in time: families existed before states. And prior in right: parents' authority over their children is not a grant from the government and cannot simply be withdrawn at its convenience.

The thesis: the family is the first institution, earlier than the state in time and in rights, and the right starting point for family policy is that the state is the junior partner whose burden of proof begins when it wants to override a parent. The argument has five steps, and then the objection.

One: Aristotle's sequence

Begin in Athens, since Western civilization has two homes, and the first is there. In the first book of the Politics, Aristotle sets out how a political community grows. The first association, he says, is the household, formed out of the natural bond of man and woman, and of master and servant in his day's terms, to meet the needs of daily life. When several households unite for more than daily needs, a village forms. When several villages unite in a community large enough to be self-sufficient, a city, a polis, is the result.

The order matters. The city comes last. It is the completion of the earlier forms, not their inventor. The household is not a department of the city. Aristotle did argue that the whole is prior to its parts, so that the city is prior to the individual, and a reader can fairly debate what he meant. But the sequence of growth he describes, household to village to city, is a sequence in which the family is the foundation. Political authority is built on top of it.

Two: Jerusalem's account

The second home is Jerusalem. The book of Genesis describes the first institution before any government: in the second chapter, "Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh" (Genesis 2:24). In the first chapter comes the charge to be fruitful and multiply. Government, in the biblical telling, arrives later and as a concession. When Israel asks for a king, the prophet Samuel warns them what a king will take: their sons for his chariots, their daughters for his kitchens, a tenth of their harvest (1 Samuel 8). The warning treats the family as a thing that the state will want to draw upon, and that it should be wary of.

You do not have to be a believer to see the point. Two of the oldest sources of the Western tradition, on different premises, agree on the sequence: family first, state after.

Three: Locke on paternal power

Move to the English tradition that the Founders drew on. John Locke's Second Treatise of Government (1689) has a chapter, the sixth, called "Of Paternal Power." Locke was answering Sir Robert Filmer, who had argued that kings rule as fathers rule, with absolute and inherited authority over their subjects. Locke's reply is a careful dismantling. A father's authority over his children is real, he agreed, but it is limited: it exists for the child's benefit, and it ends when the child comes to maturity and can govern himself.

Locke put the point this way: children, he said, are not born in the full state of equality, though they are born to it. Their parents have a sort of rule and jurisdiction over them while they are in a state of weakness, but it is temporary, and its purpose is to bring them to the use of reason. He also insisted that this authority belongs to both parents, which is why he preferred the phrase "parental power" to Filmer's "paternal."

Notice what Locke does and does not say. He does not say the family is a little kingdom. He says it is a relationship defined by duty to the child. And he does not say the state is the supreme parent. The legitimate government, in his account, is a trust that the people create to protect their rights, among them the rights of the parents to raise their children. The Founders read Locke. The Declaration's claim that governments are instituted to secure unalienable rights has Locke's fingerprints on it.

Four: Leo XIII and the older society

In 1891 Pope Leo XIII issued the encyclical Rerum Novarum, on the condition of workers. Its argument on the family is worth knowing even for non-Catholics, because it states the principle in compact form. Leo argued against the socialists of his day that the family is "a true society, and one older than any State," with its own rights and duties. The father has a duty to provide for his children. Leo called the idea that civil government may take intimate control of the family "a great and pernicious error," and said the state may step in only in cases of extreme distress or serious disruption of mutual rights.

Leo's principle has a name in later Catholic teaching: subsidiarity. Higher bodies should help lower ones and not absorb them. You can read about the 1931 version in Subsidiarity, the 1931 Catholic principle every federalist should know. The point I want here is simple. The idea that the family has its own standing against the state was not invented by American conservatives. It is a long inheritance, from Athens, from Jerusalem, from Locke and from Rome.

Five: the Supreme Court said it

Now the American law. In the 1920s the Court heard two cases that stated the principle.

In Meyer v. Nebraska (1923), the Court struck down a state law forbidding the teaching of foreign languages to young children. The Court held that the liberty protected by the Fourteenth Amendment includes the right of parents to control the education of their children.

Two years later, in Pierce v. Society of Sisters (1925), the Court considered an Oregon law that required nearly every child between eight and sixteen to attend public school. The Court's opinion, by Justice McReynolds, was unanimous and its core sentence is among the most important in American family law. The child, it said, 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.

Look at the structure of that sentence. It does not say parents have unlimited rights. It says they have a right coupled with a high duty. The authority is a trust, and a trust is exactly what Locke described. The state may not standardize its children into a single mold, which is what the Oregon law was designed to do. The law, which the Klan had supported as a way of closing Catholic schools, did not survive.

The same principle has come back many times. In Wisconsin v. Yoder (1972), the Court held that Amish parents could not be compelled to send their children to school beyond the eighth grade, on religious-freedom grounds. In Troxel v. Granville (2000), a plurality of the Court called the interest of parents in the care, custody and control of their children perhaps the oldest of the fundamental liberty interests it has recognized, and held that a judge may not simply substitute his own view of a child's best interests for a fit parent's decision.

The pattern the state follows

If the principle is so well established, why does the state keep acting as if it were the parent? Because the incentives run that way. Consider what happens when a government program takes up a family function.

• It begins with a real need: a child who is hungry, a parent who cannot cope, a school that fails.
• It offers a service, often a good one, funded by taxes.
• The service creates a constituency, an agency and a budget line, and the agency has an interest in expanding its role.
• The role expands from helping the family to replacing a function the family performed, and the standard for judging parents shifts from "is this child harmed?" to "is this child receiving what the program would provide?"

At every step the people involved mean well. That is why the pattern is so persistent. The result, in the worst cases, is a state that sets the curriculum, the lunch menu and the definition of a proper upbringing, and presents every limit on parents as a service. A parent is told that his child's school may keep a secret from him because the child has a right to privacy. The state in such a policy has made itself the child's confidant and the parent the suspect.

That is the logic of the state as parent. It is not a conspiracy. It is what happens when no principle sets a limit. A conservative who believes that the family is prior to the state has such a principle, and the principle says the burden of proof lies on the one who wants to override.

The strongest objection: children need protection

Now for the hardest part. The objection is not stupid, and it deserves a full answer.

Some parents are bad. Some are cruel, some are neglectful, some are abusers. A child is a person, not the parents' property. If the family is prior to the state and the state may not intrude, who protects the child who is being beaten in the next apartment?

I agree with the premise. A child is a person with rights of his own. The American tradition has recognized the point for a long time. In 1874, in the case of a New York girl named Mary Ellen Wilson, who was being abused by her guardians, a church missionary enlisted Henry Bergh, the head of the ASPCA, and his colleagues took the case to court. The scandal helped lead to the founding of the New York Society for the Prevention of Cruelty to Children and eventually to the wider apparatus of child-protection law. The state's authority to rescue a child from serious harm is not in dispute among serious people. The Court said in Prince v. Massachusetts (1944) that the right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the child to ill health or death, and that the state has a wide range of power for limiting parental freedom and authority in matters affecting the child's welfare.

So the real question is where the line goes. Here is how I would answer in numbered form.

1. The family's priority is a presumption, not an absolute. Locke's parental power exists for the child's good. A parent who abuses it forfeits the claim to deference, at least in the measure of the abuse.
2. The trigger should be harm, not disagreement. The state may step in when there is evidence of abuse or serious neglect: broken bones, starvation, abandonment. It should not step in because a parent chose a different school, a different diet, a different faith, or a stricter bedtime than an agency prefers. The difference between those two is the difference between protecting a child and managing a household.
3. The burden lies with the state, and the process should be fair. A parent who faces removal of a child should have notice, counsel and a hearing before a court, not an administrator's judgment alone. The more severe the intrusion, the stronger the proof should be. An error costs a child her family, which is its own kind of injury.
4. Closer is better. The people who can help a child in trouble are usually nearer than the state: grandparents, neighbors, churches, schools. why a church charity knows things a federal program never will makes the case for the local over the distant. When the state must act, it should act through the level of government closest to the family, and with the least intrusive remedy that works.
5. Prevention beats rescue. The most reliable protection for a child is an intact home with a father and a mother who are committed to each other and to her. I would argue that this is a conclusion of common sense as well as of experience. For the argument that dads matter, read fathers are not optional, and the culture that says they are is wrong, and for how public programs can punish marriage, see the marriage penalty buried in welfare programs, with the math shown.

You can see that the objection, answered properly, does not defeat the thesis. It refines it. Where there is real harm, the state has a duty. Everywhere else, the family is in charge, and the state is the junior partner.

What the Founding adds

The Founders did not write a family clause. They did not think they needed one. The Constitution's design, with limited and enumerated powers, leaves the family to the states and the people, and the Tenth Amendment says that powers not delegated to the United States are reserved to the states or to the people. The federal government has no enumerated power over the raising of children, and the one great federal instrument that touches it, the spending power, ought to be examined at every step. The principle that government is a servant of a pre-existing society is the premise of the Declaration. If the state could be a parent, there would be no pre-existing rights for it to secure. You can read the founding texts on the Founders page and in the Constitution, and follow the spending at the national debt clock.

The case in brief

1. The family is prior to the state in time and in rights: Aristotle's sequence of household, village and city, Genesis, Locke's chapter on paternal power, and Leo XIII's Rerum Novarum of 1891 all say so.
2. American law agrees: Pierce v. Society of Sisters (1925) held that the child is not the mere creature of the State, and Meyer, Yoder and Troxel built on it.
3. The state acts like a parent because every program starts with a real need and expands until it replaces the family function it was meant to supplement.
4. The best objection, that children need protection from bad parents, is right on the premise and answered by a presumption in the family's favor, a trigger of real harm, a fair process, the closest level of help, and prevention.
5. A conservative family policy is one in which the burden of proof lies on the government when it wants to override a parent.

What you can do: look up how your state's child-protection law defines neglect and what process a parent receives, then attend a school board meeting and ask how the district handles parents' right to review curriculum and records.