PARENS PATRIAE, WHEN THE STATE GOVERNMENT IS THE PARENT
“”> in 1776 ‘The United States of America’ began, the great experiment in freedom.
People from each colony fought in the Revolutionary War to enable the colony to become a Sovereign Nation State.
“These States then created a new Government, a Nation of States, designed to exclusively serve the several Sovereign Nation States.
Under this concept the Nation of States United was born, the United States.
Every Sovereign Nation State joining the Union had a Constitution.
The newly created The United States of the Union had a Constitution as well.
The Constitution of the United States was written by delegates of the people at the conventions, sent from the group of nation states.
When ratified by 2/3 of the people’s conventions of the then 13 Independent and Sovereign States, it was ordained and established as “The Constitution for the United States of America.<“”
This new Union of States was comprised only of those states which had ratified the Constitution.
“The government of the United States was “delegated” only 20 grants of power [See Constitution Art 1, Sec 8] and 10 things were carefully enumerated which the government may not do, [See Constitution Art 1, Sec 9], and 10 further restrictions were added in the first 10 amendments [See “Bill of Rights”] to the Constitution by the several states.
Therefore, the following proclamations follow:
- We the people, in each United State, are ruled by 2 Governments: State and Federal
- For each State Law, the U.S. Government does not have a similar Federal Law; and vice versa; therefore, there should be NO conflict between the 2
- Each Law of either is established for a different function and objective
- There are 20 entities which only the U.S. Government has exclusive authority over
- And there are 10 entities which only State Governments have exclusive authority over
- Together the 2 make one complete Government with different Sovereignties, a dualistic nature, for protection the United States of people.
- “The same person may be at the same time a citizen of the United States and a citizen of a State, but the rights of citizenship under one of those governments will be different from those the citizen has under the other”
- Citizens owe allegiance-to and have protection-from both the State and Federal governments
- Citizens voluntarily submitted to our 2 Sovereignties form of Government, when our great country was founded,
- and cannot legally object or rule otherwise. [The Supreme Court, 92 US 551: 1875 U.S. v Cruikshank] [PARENS PATRIAE…. GOVERNMENT AS PARENT https://www.scribd.com/document/239371565/Parens-Patriae-Government-as-Parent, US Constitution, Trust Law, 14th AmendmenT, SCRIBD]
States courts handle specific legal matters, e.g., probate court (wills and estates); juvenile court; family court. [Comparing Federal and State Courts, Administrative Office of the U.S. Courts on behalf of the Federal Judiciary. The purpose of this site is to provide information from and about the Judicial Branch of the U.S. Government.]
“”> From their inception, Juvenile Courts have had jurisdiction
1. over children and adolescents, who committed illegal acts
2. over those children and adolescents, who defied parental authority or social conventions, out of control and in need of guidance
3. Jurisdiction over abused and neglected children, who had committed no offense.
In the 1960s, many states revised their delinquency laws to move status offenders and non-offenders into new non-delinquent categories, such as Persons, Children, or Minors in Need of Supervision (referred to as PINS, CHINS, and MINS).
In 1974 Congress passed the Juvenile Justice and Delinquency Prevention Act (42 U.S.C. §§5601-5640), creating a federal Office of Juvenile Justice and Delinquency Prevention within the Department of Justice.
The Act provided federal leadership in the reform of the treatment of status offenses and non-offenders.
It required states that received federal formula grants to remove noncriminal status offenders and non-offenders (e.g., abused and neglected children) from secure detention and correctional facilities.
Young people who might formerly have been processed through the juvenile justice system for status offenses may now be institutionalized in other facilities, such as private mental health and drug and alcohol treatment facilities.
In 1988, the act was amended to require states to address disproportionate confinement of minority juveniles. [“The Juvenile Justice System.” Institute of Medicine and National Research Council. 2001. Juvenile Crime, Juvenile Justice. Washington, DC: The National Academies Press. doi: 10.17226/9747]
During the nineteenth century, the treatment of juveniles in the United States started to change. Social reformers began to create special facilities for troubled juveniles, especially in large cities.
In 1899, the first juvenile court in the United States was established in Cook County, Illinois.
The idea quickly caught on, and within twenty-five years, most states had set up juvenile court systems. The early juvenile courts shared with reform schools the same desire to rehabilitate rather than of punish juvenile offenders.
They were based on the legal doctrine of parens patriae (a Latin term that means “parent of the country”).
The parens patriae doctrine gives the state the power to serve as the guardian (or parent) of those with legal disabilities, including juveniles. In line with their “parental” role, juvenile courts tried to focus on the “best interests of the child.” [The History of JUVENILE JUSTICE – American Bar Association]
Supremacy Clause, U.S. Constitution: Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government’s exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect. [Legal Information Institute, June of 2017 by Stephanie Jurkowski]
What happens when state law conflicts with federal law? The answer relies on the doctrine known as federal preemption.
The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the “supreme law of the land.” This means that judges in every state must follow the Constitution, laws, and treaties of the federal government in matters which are directly or indirectly within the government’s control.
But in the absence of federal law, or when a state law would provide more protections for consumers, employees, and other residents than what is available under existing federal law, state law holds. (For example: Parens Patriae Doctrine / State Jurisdiction for Child Protection, Welfare and Abuse). [Supremacy Clause, 2017 FindLaw]
The basics on preemption – American Bar Association, Chapter 1.
1.1 WHAT IS THE DOCTRINE OF PREEMPTION? Preemption is a doctrine of American constitutional law under which states and local governments are deprived of their power to act in a given area, whether or not the state or local law, rule or action is in direct conflict with federal law.1 The preemption doctrine is a subset of the field of “federalism,”2 the broader term for the structured allocation of power among federal and state governments under our constitutional system. The analysis of a preemption dispute focuses upon statutory construction (the federal statute’s words and its drafters’ intention) in the context of a constitutional framework of sovereignty, commerce regulation, or other predicate for federal powers. [1. Stephen Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767, 771 (1994). 2. For a useful review of federalism concepts, see Robert Bork & Daniel Troy, Locating the Boundaries: The Scope of Congress’s Power to Regulate Commerce, 25 HARV. J. L. & PUB. POL’Y 849 (2001).]
But in the absence of federal law, or when a state law would provide more protections for consumers, employees, and other residents than what is available under existing federal law, state law holds. (For example: Parens Patriae Doctrine / State Jurisdiction for Child Protection, Welfare and Abuse). [Supremacy Clause, 2017 FindLaw]
1.6 IS THERE A PRESUMPTION AGAINST PREEMPTION? The search for congressional intent about preemption has long been said to begin “with the basic assumption that Congress did not intend to displace state law.”33
There has been a presumption that the “historic” state police powers are not preempted by the federal government 34 unless it is “the clear and manifest purpose of Congress” 35 to “supplant state law”36—that is, that express or implied preemption criteria have been satisfied for a particular federal statute or rule, and the statute or rule applies to the particular set of facts. 37
The basis for the desire to avoid preemption is the preservation of the federalism bargain, under which exercise of federal supremacy “is not lightly to be presumed.”38
Courts should not unnecessarily disturb the “federal-state balance.”39 Courts were again reminded in 2005 not to “cavalierly” preempt the exercise of state powers.40
The presumption is stronger in some categories and weaker in others. If the subject matter was “traditionally regarded as properly within the scope of state superintendence,”41 or a matter of public health or safety,42 then the courts rely more heavily on the presumption that states will continue to have an important role.
Advocates for preemption must show more than an “obscure grant of authority [in order] to regulate areas traditionally supervised by the states’ police power.”43 [33. Maryland v. Louisiana, 451 U.S. 725, 746 (1981). 34. Hillsborough County v. Automated Medical Labs. Inc., 471 U.S. 707, 715 (1985). 35. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 36. N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995). 37. Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Maryland v. Louisiana, 451 U.S. 725, 746 (1981). 38. N.Y. State Dept. of Social Services v. Dublino, 413 U.S. 405, 413 (1973). 39. United States v. Bass, 404 U.S. 336, 349 (1971). 40. Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). 41. Fla. Lime & Avocado Growers Inc. v. Pauli, 372 U.S. 132, 144 (1963). 42. Automated Medical Labs. v. Hillsborough County, 471 U.S. 707 (1985). 43. Merrill Lynch Pierce Fenner & Smith Inc. v. Dabit, 126 S. Ct. 1503, 1515 (2006)] [The basics on preemption – American Bar Association
The people never intended that the government of the United States or governments of the States should over step their delegated authorities.
The Parens Patriae Doctrine
- authorizes that “States have Sovereign Authority for Child Welfare
- and Sovereign Authority for Guardianship of all Children”
- and Sovereign Authority to Protect Children from Child Physical, Psychological and Sexual Abuse and Human Rights Violations
- When the effectiveness of the Parens Patriae Doctrine is tested by 42 U.S.C. 1983, federal civil rights law authorizing parents to have the care and companionship of their children and the corresponding right of children the same to their parents,
- “reconciliation of the divergent interests of the states, individual civil rights protection of children, while preserving state autonomy,
- and legitimacy of federal intervention to protect the right of parents to the care and companionship of their children,
- both State Governments and the U.S. Federal Government reveal that they are sovereign in their own right.
- The states’ sovereignties stop short of the authority vested the U.S. Government
- and the U.S Government’s sovereignty stops short of authority vested in State Governments.
“State Sovereignty is either serving sovereign functions or furthering the values of Constitutional Federalism, and will continue to be an important concept in terms of preserving the States and ordering Constitutional Federalism, which is continually recognized in the work of the Supreme Court.”
“The language of justification, values, and the substance of protections which together comprise the recent renaissance of “states’ rights” i.e. dignity, esteem, equality, autonomy, internal ordering, and procedural due process, can thus plausibly be read as an attempt to impose the status of person upon the states.
“Grafting these and other personal characteristics upon statehood has led to a substantial revival of state sovereignty in a number of constitutional contexts.
“In sum, state sovereignty has been given meaning and substantive effect not only through the imposition of various functions but also through the imposition of formal statuses.
“If a state is a “market participant,” for example, then it may impede commerce; if it is a “market regulator,” then it generally may not do so. More substantively, states, once treated as possessing no more “sovereignty” than an ordinary corporation, have recently become nation or person-like institutions with “rights” and claims to personal values like “dignity,” “esteem,” and “respect.”
“State sovereignty is manifested in this regard in the rights to autonomy, immunity, equality, and process states have been held to possess. This is another way in which the states, which do not possess classical sovereignty or substantial power relative to federal authorities, are nevertheless still considered to be and ultimately are treated as ‘sovereign’.”
“Sovereignty levels the playing field for both contestants, States’ and the U.S. Governments, by insisting on equality in each and every separately designated function. The concept performs a variety of functions, domestically and abroad. (4 Fowler&Bunck)” [Are the States Sovereign? by Timothy Zick, William & Mary Law School Follow 83 Washington University Law Quarterly 229-337 (2005)]
The following are research examples of that revelation and reconciliation.
“An act to vest in the agencies of the Federal Government powers wholly undefined in matters and to authorize appropriations of federal funds to the purpose of the act are unconstitutional.” [argued by Mr. Alexander Lincoln, Ass At General Commonwealth of Mass]
“The fact that it was considered necessary in explicit terms to preserve from invasion by federal officials the right of the parent to the custody and care of his child and the sanctity of his home shows how far reaching are the powers which were intended to be granted by the act.
The act is invalid because it assumes powers not granted to Congress and usurps the local police.
Unconstitutional to “for congress to pass Legislation that usurps the reserved powers of the States and to pass laws that usurp the police power of the States and purported to exercise some constitutional power. 6
The states can neither accept valid such an act which usurps the powers to the States by the Constitution. 7 and cannot yield a part of its powers reserved by the 10th Amendment.
Congress cannot assume and state legislatures cannot yield the powers reserved to the States by the Constitution.
A statute attempting by imposing conditions upon a general privilege, to exact a waiver of a constitutional right of a state is null and void.” 8
Such an act is invalid because it sets up a system of government by cooperation between the Federal Government and certain of the States not provided by Constitution.
Congress cannot make laws for the States and it cannot delegate to the States the power to make laws for the United States. 9
The subject of every birth certificate is a child. The child itself is the asset of the trust established by the birth certificate. “Title to your child is now owned by the state.
The state now directs the trust corpus and provides the “benefits” for the beneficiary, the corpus and beneficiary being one and the same, the citizen, 1st as a child, then an adult.<“”
[PARENS PATRIAE…. GOVERNMENT AS PARENT https://www.scribd.com/document/239371565/Parens-Patriae-Government-as-Parent]
“”>As a matter of social and economic policy, the family is regarded not only as the appropriate institution for provision of the love and affection necessary for the proper development of the child, but also as the institution responsible for provision of the economic and material needs of the child.4
Current constitutional theory comports with this premise. The Supreme Court has long interpreted the Constitution as creating a zone of privacy that insulates families from state intrusion.5
The constitutional right to family integrity encompasses the autonomy of adults in marriage and in family matters such as procreation and childrearing. 6
It protects the right of parents to the care and companionship of their children and the corresponding right of children in their parents. 7
Although the Court has repeatedly upheld a right to family privacy, it has not construed the Constitution to impose on government the obligation to fund the exercise of that right.8
Implicit in the Court’s interpretation of family privacy is the notion that family integrity is best protected when the family is shielded from state interference, even when that interference is beneficent. Thus, prevailing constitutional doctrine does not recognize a right of families to state assistance, even when such assistance is necessary to protect and maintain family integrity.<“”
3 CHILDREN’S DEFENSE FUND, supra note 1, at 5; see also Daan Braveman, Cdldren, Poverty and State Constitaions, 38 EMORY L.J. 577, 577-85 (1989); Peter B. Edelman, Toward a Copprehensve Antipoverty Strategy: Getting Beyond the Silver Bullet, 81 GEo. LJ. 1697, 1722-24 (1993). Contrary to popular stereotypes, although past and continuing racial discrimination in employment, housing, and education contribute to making Black and Latino children more likely to be poor than non-Latino White children, the nwnber of poor non-Latino White children (6.0 million) is considerably larger than the number of poor Black children (4.9 million) or poor Latino children (3.1 million). In addition, more poor children live outside cities-in suburban and nonmetropolitan smaller cities and rural areas than in major cities. Further, poor families no longer tend to be large families; the average poor family with children consists of an average of 2.2 children, only slightly larger than the average of 1.9 children in all families. CmLDREN’s DEFENSE FUND, supra note 1, at 5.
4 See DUNCAN LINDSEY, THE WELFARE OF CHILDREN 322 (1994); see e.g., VA. CODE ANN. §§ 63.1-249 to 63.1-274.10 (Michie 1995); N.Y. JuD. § 413 (McKinney 1995).
5 See Griswold v. Connecticut, 381 U.S. 479, 481-85 (1965) (Harlan, L and White, J., concurring) (recognizing a limited substantive due process fundamental right to privacy).
6 See Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978); Roe v. Wade, 410 U.S. 113, 154-56 (1973); Griswold v. Connecticut, 381 U.S. 479,484-85 (1965); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 391-92 (1923); see also Moore v. City of East Cleveland, 431 U.S. 494, 500-06 (1977) (plurality decision) (recognizing a substantive due process fundamental right to make choices concerning family living arrangements).
7 See Caban v. Mohammed, 441 U.S. 380, 385 (1979); Stanley v. Illinois, 405 U.S. 645, 647-52 (1972).
“”>Under the common law doctrine of parens patriae the state has an obligation to ensure the safety and well-being of children. Despite the weight imparted in both law and social policy to the parent-child relationship and to the values of family privacy, the state, in the proper exercise of its power as parens patriae, can require parents to provide proper food, clothing, shelter and medical care to their children. 9
Parental failure in that regard can lead to the removal of children from their parents’ care. Current constitutional theory balances the right to family integrity against the state’s power as parens patriae by characterizing that right as one of noninterference by the state in family matters absent a showing of compelling state interest in preventing criminal conduct o or protecting children from parental harm.II
State statutes that allow for the removal of children from their parents for neglect are considered proper manifestations of the exercise of that power. 12 <“”
8 See Harris v. McRae, 448 U.S. 297, 316-17 (1980); Maher v. Roe, 432 U.S. 464, 472-74 (1977) (holding that a state cannot create obstacles to prevent a woman from exercising her freedom of choice concerning abortion; however, there is no obligation on the state to provide equal funds for indigent childbirths and abortions).
9 See supra text accompanying note 4.
10 Reynolds v. United States, 98 U.S. 145, 164 (1878).
11 Quilloin v. Walcott, 434 U.S. 246, 255-56 (1978). 12 See infra note 50.
Current constitutional theory balances the right to family integrity against the state’s power as parens patriae by characterizing that right as one of noninterference by the state in family matters absent a showing of compelling state interest in preventing criminal conduct o or protecting children from parental harm.II State statutes that allow for the removal of children from their parents for neglect are considered proper manifestations of the exercise of that power. 12
9. See supra text accompanying note 4.
10 Reynolds v. United States, 98 U.S. 145, 164 (1878).
11 Quilloin v. Walcott, 434 U.S. 246, 255-56 (1978).
12 See infra note 50.
I. THE RIGHT OF FAMILY INTEGRITY AND THE PARENs PATRIAE DOCTRINE: WHERE CONSTITUTIONAL AND COMMON LAW DO MEET
“”>If a child is receiving inadequate food, clothing, shelter, medical care and the like-if the child is neglected-the state, as it has defined its parens patriae power, has an affirmative obligation to intervene in the family on the child’s behalf. Interference in the family is justified if it protects the child from harm.
Thus, the form of intervention must be based on a determination of what would be in the child’s best interest. However, it must also be narrowly tailored so as to accomplish the state’s objective with the least intrusion on the fundamental privacy right of the family unit. This balancing of competing interests requires consideration of the available alternatives. The state ought not continually interfere with the integrity of poor families, ostensibly for the purpose of protecting children from harm, by imposing an action that routinely puts such children at greater jeopardy.<“”
[1996 God Bless the Child: Poor Children, Parens Patriae, and a State Obligation to Provide Assistance Kay P. Kindred University of Nevada, Las Vegas — William S. Boyd School of Law Ohio State Law Journal 57; 519 http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1074&context=facpub
[Parens Patriae Suits by a State under 42 U.S.C. 1983, 33 Cas. W. Res. L. Rev. 431 (1983) Available at: Jeffrey Baddeley, http://scholarlycommons.law.case.edu/caselrev/vol33/iss3/6 ]
42 U.S. Code § 1983 – Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
(R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104–317, title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.)
“”>Although Congress enacted what is now 42 U.S.C. section 1983, cited above, to provide federal civil rights enforcement in the wake of state neglect 20 7 early Supreme Court decisions severely restricted its availability.2 0 8
In 1940’s, the Court modified its view of the 14th amendment as a threat to state autonomy as the Court shifted its priorities from “dual federalism” to the protection of individual liberties. 9
In Monroe, the Court extended its revised fourteenth amendment analysis to section 1983 suits, facilitating access to federal court for civil rights claimants.2″ 10.
Ten years later, with federal dockets growing ever more crowded, the Court retreated from Monroe and resurrected the “dual federalism” principle. 211.
Indicating that certain areas of state activity are beyond the reach of federal intervention, the Court in Rizzo warned the lower federal courts against entering local controversies except in the most extreme circumstances. 21 2.
The unfortunate effect of the decision, whether or not intended, is to deny federal relief for most civil rights violations. 2 t3.
This suggests that the federalism concerns which bar 42 U.S.C. 1983 relief may be accommodated by allowing state civil rights enforcement through Parens Patriae Doctrine. 1 4.
- Both (1.) federal sovereignty and federal law, 42 U.S.C. 1983, federal law that allows lawsuits for violations of constitutional rights,
- and (2.) state sovereignty and state rights for protection of the health and well-being of Children and state protection-from Child Abuse and investigation and state prosecution-of Child Abuse violations,
- are accommodated by proceeding with state civil rights enforcement through Parens Patriae Doctrine, which authorizes that state Governments are the ultimate Parent of Children, when others have failed or violted Children. 1 4.
While such standing may contradict the statute’s original purpose, 215. it furthers the purposes of 42 U.S.C. 1983 without compromising state autonomy.
By invoking its role as Parens Patriae, the state acts to fulfill its citizens’ legitimate expectations of government protection 216. while pursuing its own interest in checking local abuses of power. 217.
Though not without its drawbacks, 218. Parens Patriae standing in 42 U.S.C. 1983 suits will reconcile the divergent interests of the states, individual citizens, and the federal government.
It will provide individual civil rights protection of children while preserving state autonomy, and lend legitimacy to federal intervention protects the right of parents to the care and companionship of their children and the corresponding right of children in their parents.219.<“”
205. See Snapp, 458 U.S. at 607-08 (“[The State has an interest in securing observance of the terms under which it participates in the federal system.”).
206. By providing another avenue for state control over municipalities and local officials, parens patriae standing might also enlarge the states’ power to check local civil rights abuses. In addition to legislative supervision by restricting local budgets and seeking state court injunctions, states would be able to enforce § 1983 in federal court.
207. See supra notes 23-27 and accompanying text.
208. See supra notes 28-43 and accompanying text.
209. See supra notes 46-54 and accompanying text.
210. See supra notes 55-70 and accompanying text.
211. See supra notes 71-86 and accompanying text.
212. See supra notes 89-110 and accompanying text.
213. See supra notes 111-15 and accompanying text.
214. See supra notes 197-201 & 203-05 and accompanying text.
215. See supra note 197 and accompanying text.
216. See supra notes 118-42 and accompanying text. 217. See supra note 206. 218. See supra notes 199-200 & 202 and accompanying text. 219. See supra notes 203-06 and accompanying text.
[Jeffrey Baddeley, Parens Patriae Suits by a State under 42 U.S.C. 1983, 33 Cas. W. Res. L. Rev. 431 (1983) Available at: http://scholarlycommons.law.case.edu/caselrev/vol33/iss3/6 ]
“”> Parens patriae is Latin for “parent of the nation” (lit., “parent of the fatherland”). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection.
For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.
In U.S. litigation, parens patriae can be invoked by the state to create its standing to sue; the state declares itself to be suing on behalf of its people.
For example, the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (15 USC 15c), through Section 4C of the Clayton Act, permits state attorneys general to bring parens patriae suits on behalf of those injured by violations of the Sherman Antitrust Act.
Parens patriae relates to a notion initially invoked by the King’s Bench in the sixteenth century in cases of non compos mentis adults. The notion dates from at least 1608, as recorded in Coke’s Report of Calvin’s Case, wherein it is said “that moral law, honora patrem…doubtless doth extend to him that is pater patriæ.”
The parens patriae doctrine was gradually applied to children throughout the seventeenth and eighteenth centuries, and has since evolved from one granting absolute rights to the sovereign to one more associated with rights and obligations of the state and courts towards children and incapacitated adults.
In most jurisdictions, this appears in the principle that makes the protection of the best interests of any child the first and single most important concern of the courts. For example, in any proceedings affecting the validity of a marriage, the children will not be parties in their own right, nor will they be parties to any agreement that the spouses may make. In these proceedings, the courts will often be invited to accept and enforce any agreement between a husband and wife regarding parental responsibility for their children. This will usually be done so long as the agreement is seen to be in the best interests and welfare of the children. Courts are not obliged to invoke the parens patriae doctrine in cases involving children and not all courts, particularly newer courts such as the Australian Family Court (est 1975), have specific parens patriae jurisdiction.
In some situations, the parties may have submitted their dispute to formal arbitration proceedings. Such proceedings, whether judicial or quasi-judicial, cannot displace the supervisory power of the court in the exercise of its parens patriae function to the child. To the extent that such an award conflicts with the best interests of the child, the courts will treat it as void in respect of the child, even though it might be binding on the parents. The test of the best interests of the child can always be the basis of a challenge by a parent, grandparent, an interested relative, or the child acting through a friend.
Thus, for example, the spouses might already have been through a religious form of divorce known as the get before the Beth Din, the Jewish rabbinical court, which included provision for the children. Even though there might appear to be a grant of custody in absolute terms by this court, public policy always requires that it can be reviewed by a secular court and, if the state court is of the view that it is not in the best interests of the child, it will be set aside (see Stanley G. v. Eileen G. New York Law Journal, 10-13-94, P.22, Col.6, Sup. Ct., NY Co.).
Within the EU, the right of the child to be heard in any proceedings is a fundamental right provided in Article 24 Charter of Fundamental Rights of the European Union. The views of the child shall be considered on matters which concern them in accordance with their age and maturity. It also provides that the child’s best interest shall be the primary consideration in all actions relating to children, whether taken by public authorities or private institutions.
The same principles apply to individuals whose mental capacity is impaired and who are being abused by carers or other individuals, whether family members or otherwise. Since these individuals cannot protect themselves, the courts have an inherent jurisdiction to appoint a guardian ad litem for particular proceedings. In English Law, long-term care is arranged through the Court of Protection.
Parens patriae in US federal courts
The concept of the parens patriae suit has been greatly expanded in the United States federal courts beyond that which existed in England.
In Louisiana v. Texas, the State of Louisiana brought suit to enjoin officials of the State of Texas from so administering the Texas quarantine regulations as to prevent Louisiana merchants from sending goods into Texas.
The US Supreme Court recognized that Louisiana was attempting to sue, not because of any particular injury to a particular business of the State, but as parens patriae for all its citizens. While the Court found that parens patriae could not properly be invoked in that case, the propriety and utility of parens patriae suits were clearly recognized, thus setting a precedent. Thus, in a series of cases after Louisiana v. Texas the Supreme Court followed that precedent to allow states to sue as parens patriae:
- Missouri v. Illinois, 180 U.S. 208 (1901) (holding that Missouri was permitted to sue Illinois and a Chicago sanitation district on behalf of Missouri citizens to enjoin the discharge of sewage into the Mississippi River);
- Kansas v. Colorado, 206 U.S. 46 (1907) (holding that Kansas was permitted to sue as parens patriaeto enjoin the diversion of water from an interstate stream);
- Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (holding that Georgia was entitled to sue to enjoin fumes from a copper plant across the state border from injuring land in five Georgia counties);
- New York v. New Jersey, 256 U.S. 296 (1921) (holding that New York could sue to enjoin the discharge of sewage into the New York harbor);
- Pennsylvania v. West Virginia, 262 U.S. 553 (1923) (holding that Pennsylvania might sue to enjoin restraints on the commercial flow of natural gas);
- North Dakota v. Minnesota, 263 U.S. 365 (1923) (holding that Minnesota could sue to enjoin changes in drainage which increase the flow of water in an interstate stream).
The Supreme Court recognized a different kind of paren patriae suit in Georgia v. Pennsylvania R. Co. While the earlier cases were common-law actions to prevent or repair harm to a state’s “quasi-sovereign” interests. Georgia now sought relief under the federal antitrust statute, alleging that 20 railroads had conspired to restrain trade and to fix prices in a manner that would favor shippers in other States (particularly Northern States) to the detriment of Georgia shippers and the state’s economy. The Court upheld Georgia’s claim as parens patriae with respect to injunctive relief, but did not consider whether the antitrust laws also authorized damages for an injury to the State’s economy, because the ICC’s approval of the challenged rates barred any damage recovery.
Then, three decades later, in Hawaii v. Standard Oil Co., the Court considered a generally similar damages action Hawaii brought under the antitrust laws for damages to its general economy resulting from a price fix by four oil companies. The Court held that the state could sue as parens patriae only for injunctive relief and not for damages. Its citizens would have to sue individually for damages.
In Massachusetts v. EPA, a group of states (mostly coastal states) sought to sue the EPA to require it to regulate greenhouse gas emissions because they were causing global warming and rising sea levels. “These rising seas have already begun to swallow Massachusetts’ coastal land.” The Court stated:
In sum—at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.
Therefore, states such as Massachusetts had standing as parens patriae to sue EPA to seeks to require it to regulate to protect their coastlines. The Court held that EPA would have to consider the matter and give a reasoned explanation of whatever its decision on the merits would be.
In Pennsylvania v. Mid-Atlantic Toyota Distributors, Inc., the Fourth Circuit held that several state attorney generals were proper parens patriae plaintiffs to sue a group of car dealers for price fixing, in order to recover damages for their citizen injured by overcharges. The court held that because plaintiffs were authorized to pursue antitrust litigation against defendants on behalf of their states’ natural-person residents under both 15 U.S.C. §§ 15c-15h and state laws and constitutions, they could sue on behalf of their citizens. <“”
- [Lat: not having control over the mind or intellect. Not of sound mind; insane. See 108 A. 2d 820, 822. In certain circumstances its effect is lessened to mean only “not legally competent.” See 1 S.E. 2d 768, 770. Compare diminished capacity; incompetent; non sui juris.
- Sir Edward Coke; John Henry Thomas; John Farquhar Fraser (1826). The Reports of Sir Edward Coke, Knt. [1572-1617]: In Thirteen Parts. J. Butterworth and Son. pp. 21–. Retrieved 4 July 2013.
- People v. Bennett: Analytic Approaches to Recognizing a Fundamental Parental Right Under the Ninth Amendment, 1996 BYU Law Review 186, 227-34
- Removing Classrooms from the Battlefield: Liberty, Paternalism, and the Redemptive Promise of Educational Choice, 2008 BYU Law Review 377, 386 n.30
- Parens Patriae — Quaqua Society
- Hawaii v. Standard Oil Co., 405 U.S. 251 (1972).
- 176 U.S. 1 (1900).
- 176 U.S., at 19.
- 324 U.S. 439 (1945).
- 405 U.S. 251 (1972).
- 549 U.S. 497 (2007).
- 549 U.S. at 522.
- 549 U.S. at 526.
- 549 U.S. at 534-35.
- 704 F.2d 125 (4th Cir. 1983)] [Wikipedia]
“”>Parens patriae is a Latin term meaning the “parent of the country”; it traditionally refers to the role of the state as sovereign and guardian of persons under legal disability. Parens patriae is the authority of the state to act in the best interest of a child and provide care and protection equivalent to that of a parent. This term is rooted in English common law and dates back to the chancery courts of England during the Middle Ages. The chancery court’s jurisdiction included the welfare of children in cases involving the guardianship of orphans and gradually expanded to justify the court’s intervention in the lives of family and children. The premises of the chancery courts were that children were under the protective custody of the king, and that the king’s authority extended to children in his role as the father of the country.
The evolution of parens patriae in the United States had its beginnings when early juvenile courts began to recognize as important the role of the parent in meeting the physical, emotional, and educational needs to the child. The court, it was thought, had the right to intervene in cases where the parents were unable or unwilling to provide for the child. This doctrine was expanded to address circumstances where the child was at risk for criminal behavior. As a result, a system of rehabilitative treatment programs was developed for youth deemed at risk, with the goal being that they grow up and become productive adults. In this way, the parens patriae model allowed the court to serve as surrogate parents for wayward children.
The first juvenile court was established in Chicago in 1899. The goal of this juvenile court was to protect neglected children and rehabilitate delinquent children. Its charge was to use the parens patriae concept to protect the state’s right to officially intervene in the juvenile’s life, especially if the youth was neglected. Under this principle, the state has the power to intervene in cases if the child has not reached full legal capacity. Moreover, the state has the inherent power and the responsibility to provide these protections to children whose natural parents were not providing appropriate care or supervision. This power, which the court recognizes as inherent, has since been strengthened by legislation that defines the scope of child protection within each state. The original juvenile court’s focus was on the child’s welfare, which included dependent, neglected, abused, and delinquent children.
In subsequent years, the states have expanded the doctrine of parens patriae to include protections for other members of their citizenry. In Louisiana v. Texas (1900), the U.S. Supreme Court recognized the propriety of allowing the state to sue on behalf of its citizenry. In Georgia v. Tennessee Copper Co. (1907), Justice Oliver Wendell Holmes wrote that individual states have recourse to the judicial power of the United States to resolve disputes between the states.
This evolution of an increasingly broad application of the parens patriae doctrine permits the state to bring an action on behalf of its citizens to protect its sovereign or quasi-sovereign interests. This sovereign interest is the guarantee of the well-being of the state’s citizenry. The U.S. Supreme Court has recognized two general categories of quasi-sovereign interests. The first is the protection of the health and well-being, both physically and economically, of the state’s residents in general. The second is the protection of the state’s interest in not being discriminatorily denied its rightful status within the federal system. In deciding whether a state can use the parens patriae doctrine in a specific claim, the Court may look to whether the injury is one that the state might address through its sovereign law-making powers and whether the conduct infringes, either directly or indirectly, on a significant portion of the population, per the ruling in Snapp and Son, Inc. v. Puerto Rico (1982).
The doctrine of parens patriae was established as a mechanism for the states to act in the best interest of children. When children are considered at risk, the state can step in and act as the parent. Over time, however, this doctrine has been expanded so that the state can act in the best interest of all citizens where the well-being of the state’s citizenry is at stake.
1. Benekos, P., & Merlo, A. (2004). Controversies in juvenile justice and delinquency. Newark, NJ: LexisNexis.
2. Elsea, K. (1995). The juvenile crime debate: Rehabilitation, punishment, or prevention. Kansas Journal of Law and Public Policy, 5(1), 135-146.
3. Georgia v. Tennessee Copper Co. 206 U.S. 230 (1907).
4. Greenberg, D. (1985). Age, crime, and social explanation. American Journal of Sociology, 9(1), 1-21.
5. Nolan, J., & Connolly, M. (1983). Black’s law dictionary (5th ed.). St. Paul, MN: West.
6. Siegel, L., & Welsh, B. (2005). Juvenile delinquency: The core (2nd ed.). Belmont, CA: Thomson.
7. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982).
[Criminal Justice Research http://criminal-justice.iresearchnet.com/crime/school-violence/parens-patriae/]
Please see U.S. Constitution – Article 1 – The Legislative Branch, Section 8 – Powers of Congress
The Congress shall have Power:
Please see: U.S. Constitution – Article 1 – The Legislative Branch, Section 9 – Limits on Congress
and 10 further restrictions were added in the first 10 amendments [See “Bill of Rights”] to the Constitution by the several states.
Preamble to the Bill of Rights *Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
“”>THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution. RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz. ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Frederick Augustus Muhlenberg Speaker of the House of Representatives John Adams, Vice-President of the United States and President of the Senate.
Attest, John Beckley, Clerk of the House of Representatives. Sam. A. Otis Secretary of the Senate. *On September 25, 1789, Congress transmitted to the state legislatures twelve proposed amendments, two of which, having to do with Congressional representation and Congressional pay, were not adopted. The remaining ten amendments became the Bill of Rights.<“”
“Ted Stevens Olympic and Amateur Sports Act is a United States law (codified at 36 U.S.C. Sec. 220501 et seq. of the United States Code) is not relevant to this subject per se.
Ted Stevens Olympic and Amateur Sports Act charters and grants monopoly status to the United States Olympic Committee, and specifies requirements for its member national governing bodies for individual sports. It is a revision of the previous Amateur Sports Act of 1978 that reflects changes such as the fact that amateurism is no longer a requirement for competing in most international sports, expansion of the USOC’s role to include the Paralympic Games, increased athlete representation, and protection of the USOC against lawsuits involving athletes’ right to participate in the Olympic Games.
“Senate Bill 2119 would make the following primary changes to the 1978 Act. (1) The title of the underlying law would be changed to the ‘‘Olympic and Amateur Sports Act’’ to reflect the participation of professional as well as amateur athletes in the Olympic games. [105th Congress Senate 2d Session REPORT 1998 105–325 Calendar No. 567 OLYMPIC AND AMATEUR SPORTS ACT AMENDMENTS OF 1998]
[Peters, Gerhard; Woolley, John T. “Jimmy Carter: “Amateur Sports Act of 1978 Statement on Signing S. 2727 Into Law. ,” November 8, 1978″. The American Presidency Project. University of California – Santa Barbara.] [36 U.S.C. § 220501] [36 U.S.C. § 220506]
Representative Justin Amash, 3rd District of Michigan, Joined September 2016 details his nay vote against S.534
S.534 passed the House of Representatives an 29, 2018 406-3 and the President signed into law February 14, 2018,
“”> I voted no on the motion to suspend the rules and pass #S534, which federalizes criminal law with respect to certain child abuse reporting. Specifically, the bill makes it a federal crime for an adult who works with amateur athletes to fail to report any instance of suspected child abuse—a subject over which the federal government has no general jurisdiction.
The Constitution does not permit Congress to pass criminal laws like the one created by this bill. It explicitly authorizes Congress to criminalize only a few activities, which relate to matters that are clearly federal in nature (counterfeiting, crimes on the high seas, treason). All other criminal activities are punishable at the state level.
The Framers of the Constitution recognized the dangers of federalizing criminal law. The potential benefits of federalization—instant, consistent law throughout the country—are easily outweighed by the negative, unintended consequences and the threat to life and liberty that federalization poses.
First, when only one jurisdiction is responsible for a particular crime, voters know who failed to act and whom to hold accountable. But when the federal government assumes responsibility for state crimes, it obscures which government—federal or state—is responsible for investigating and prosecuting a particular crime, and it vests authority in unelected federal officials whom voters can’t hold directly accountable. This allows state officials who fail to reasonably investigate and prosecute particular crimes to shift blame and sow confusion about who should be held responsible, instead of being properly scrutinized and removed by the voters.
Second, a critical component of due process is that the accused not be tried for the same crime multiple times. With the federalization of crime, however, a person may be charged in both state court and federal court for essentially the same crime.
Third, as Congress encroaches on more areas of criminal law, budget-constrained state governments may be increasingly inclined to leave the prosecution of many criminal matters to the federal government. But there are substantial benefits to having competing, functional state laws rather than one federal law. The Constitution’s approach encourages states to experiment with different systems—providing for more innovation and less risk than Congress’s imposing one law on everyone.
Fourth, the more criminal laws the federal government must enforce, the more federal police officers it needs. This federal force is not nearly as accountable to local voters or taxpayers as are state and local police. Federal police take their orders from Washington, and they often have little connection to the communities in which they operate.
Finally, the primary mission of federal courts is to judge matters that are national in scope and not properly handled in state courts. With the increased federalization of crime, however, federal courts now spend most of their time and resources handling matters that traditionally are the purview of state courts. Consequently, the ability of federal courts to deal with federal matters in an efficient and effective manner has been diminished.
In addition to federalizing state responsibilities, this bill has other fatal flaws:
S 534 creates a thought crime. No one should face the risk of prison time for failing to report unsubstantiated rumors about a potentially innocent person. Under this bill, if someone just suspects abuse—does not witness, confirm, actively conceal, or assist in the abuse in any way—and takes no other action for 24 hours, that person is a criminal. Free societies do not criminalize this kind of inaction, and crimes like this—which can turn lots of ordinary, unknowing people into criminals—take law enforcement resources away from crimes committed by malicious actors that cause direct harm.
S 534 invites due process problems. The bill establishes an organization empowered to investigate and resolve abuse accusations against individuals involved in amateur athletics, including through binding arbitration, to determine whether the accused individual may continue participating in competition. The bill requires “fair notice and an opportunity to be heard,” but it does not mandate any of the other elements of due process. This omission is especially troubling considering the bill immunizes the organization and individuals involved in the resolution proceedings from being sued for defamation. Because defamation lawsuits arise under state law, the provision also creates a Tenth Amendment issue by abridging states’ ability to determine the scope of their own laws.
The Framers wrote the Constitution to protect against the dangers posed by this bill. When Congress ignores the Constitution, we harm our constituents in ways that may not be immediately apparent. It is our responsibility to carefully consider each piece of legislation that we pass so that we can notice and avoid these consequences.