From Children-as-Chattel to Pick-Your-Pronoun

by Jim McCarthy

Pronouns have now entered the cross hairs of the culture wars, particularly in the discourse about parents’ rights in schooling.

Sometimes one longs for the good old days of yesteryear, nostalgic for their simplicity, generally free from microanalytic contention over the spoken and written word. While media is often faulted for contributing to an environment of conflict, even rage, promoting wars of words, JQ Public has been constitutionally armed for the fray by Facebook, Twitter, Instagram, and other platforms. In that sense, we have ourselves to blame for making dispassionate civil discussion extremely difficult, sometimes impossible, even incomprehensible.

The September 22 issue of BR carried a piece entitled “Parents’ Rights Are on the Virginia Ballot. Again.” The author asserted as gospel that “Children do not belong to the state, they belong to their parents” with no mention of the rights of children bookending the pronouns around “belonging.” The statement is a closed proposition defining a possessory interest of parents in their children to the exclusion of all others. This concept suggests the biblical language of dominion over the earth or subsequent perceptions about the necessity of children as agrarian labor to sustain the family. There ought to be little disagreement that children do not “belong” to anyone.

However, culture warrior sensitivity is not bounded by simplicity, often reflecting the micro-conflicts that excite its ethos. Recently, VPOTUS was trolled on Twitter for her statement, “When you see our kids, and I truly believe that they are our children, they are the children of our country, our communities” in connection with climate crisis. The head of CPAC tweeted, “Hands off my kids lady.” Other Twitterers joined in complaining that parents don’t matter or called for parents to wake up.

Native American culture fostered the relationship between people and the Earth as one of stewardship not dominion. While there is no identifiable consensus listing the rights of children. The nation’s history and laws reflect both broad and specific proscriptions for the health, welfare, and education of its children while promoting and protecting their lives, liberty, and happiness.

The nation’s first census in 1790 enumerated Virginia’s free white children under the age of 16 at 116,135, about 15.5% of the state’s total. If free white women and slaves (the largest cohort in the country) were similarly demarcated, the figure would impute to 261,580 or 21% of the state’s population. The comparable 2020 census figure for Virginia is 21.8% for residents under the age of 18.

From colonial times to the 1800s Virginia experimented with nascent attempts at a broad system of education for its children. Thomas Jefferson was a proponent of establishing a statewide system, and in 1870 the state constitution authorized a compulsory statewide segregated education system. Separate and unequal was not ended until the 1954 Brown decision, although it was delayed by the massive resistance attempt to sustain that past, that is, to maintain “theirs” and “ours” institutions.

As decades passed, the Industrial Revolution’s unquenchable thirst for labor wreaked havoc upon new immigrant families, prompting the adoption of child labor laws in the early 1900s to complement compulsory education systems. Historical sources indicate that child labor, i.e., under 16, represented 18% of all workers in the U.S. in 1900. The prescription for both reform efforts mirrored to some extent the implicit 1790 enumeration while expressing no government possessory or other ownership interest with respect to children, only that such public policy was essential to the common weal and its future.

Over time, as the nation’s population rapidly expanded, demands for government intervention in adoption, abuse, neglect, and trafficking affecting children followed in recognizing the shared goals for the health, education, and safety of children. Neither the first ten amendments to the U.S. Constitution, nor its body, specify language with respect to children’s rights. In the current Court’s analytic view, this shortcoming means children’s rights are not “deeply rooted” and have no original or textual anchors within Constitutional jurisprudence, notwithstanding any precedent.

In 2002, SCOTUS overruled a decision (Atkins v Virginia) by the Virginia Supreme Court affirming the death penalty for an intellectually disabled defendant 18 years old at the time of the offense. In two prior cases, the Court upheld the execution of a 15-year-old (Thompson v Oklahoma, 1988) and a 16- year-old (Stanford v Kentucky, 1989), until 2005 (Roper v Simmons) when it found that the execution of an individual under 18 years of age violated the “cruel and unusual punishments inflicted” provision of the Eighth Amendment.

The dissent in Roper, led by Justice Scalia, cited that the absence of a “national consensus” on the application of the cruel and unusual standard was beyond the scope of the law and did not encompass cruel and unusual at the time of the ratification of the Bill of Rights. He further criticized his colleagues for making de facto amendments (i.e., legislating from the bench). In 2021, Virginia became the 23rd state to eliminate capital punishment. It’s impossible to appreciate what number of states might constitute a national consensus regarding capital punishment or what figure (if any) might represent consensus. The potential for Roper to be reversed may be in jeopardy in the “deeply rooted” criterion crafted by Justice Alito in the overturning of Roe v Wade in Dobbs v Jackson. In addition, there exists no reference in the Constitution to capital punishment nor any text upon which to rely inviting the presently constituted Court to determine that Roper was wrongly decided.

Unlike the status of Dred Scott, who was deemed to be a non-citizen, children belong to the universes of their families and the jurisdictions wherein they live and are not the chattel of either. Rhetorical fist fights over pronoun usage, expressed in irreducible terms, shed no light or wisdom on the existence of children’s rights.

Judge Frank Easterbrook, now retired as chief judge of the Seventh Judicial Circuit and regarded by Justice Scalia as a replacement for him on SCOTUS, considered himself a textualist in interpreting the Constitution and has been quoted advising that “the choice among meanings must have a footing more solid than a dictionary – which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” He was even more emphatic in composing the forward to one of Scalia’s books:

Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the distance becomes so great that the meaning is no longer recoverable reliably. [Courts] should declare that meaning has been lost so that the living political community must choose. The imperative in the jurist’s mind clearly differs from that of the ideologue who demands a fixed outcome, or at least one the ideologue prefers.

Children are neither the chattel nor the property of any individual or government. Legally they are persons with unalienable rights that the adult society must acknowledge. Contrary assertions or suggestions are disingenuous, distorting commonly held normative understandings to cater to a political or cultural view.

In 1996, Hillary Clinton wrote It Takes a Village, a book with some chapter contents that read like guideposts to inform the contemporary debate:

  • No Family Is an Island
  • Every Child Needs a Champion
  • Kids Don’t Come with Instructions
  • The World Is in a Hurry, Children Are Not
  • An Ounce of Prevention Is Worth a Pound of Intensive Care
  • Security Takes More Than a Blanket
  • Children Are Born Believers
  • Childhood Can Be a Service Academy
  • Kids Are an Equal Employment Opportunity
  • Child Care Is Not a Spectator Sport
  • Education = Expectations
  • Children Are Citizens Too

Virginia’s educational and political leadership is no less obliged to appreciate its responsibility in this matter while cooperating with parents in formulating policies and practices for the benefit of all children. Winking or nodding appeasement to political or cultural biases speaks to a lack of integrity.

Jim McCarthy is a retired New York attorney living in Virginia.

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25 responses to “From Children-as-Chattel to Pick-Your-Pronoun”

  1. walter smith Avatar
    walter smith

    “There ought to be little disagreement that children do not “belong” to anyone.”
    I disagree. They sure as H3!! don’t belong to you! My kids belong to me and my wife until they are adults.
    Let me see if I can reconcile “Leftism” –
    Can’t drink until 21
    Can vote at 18
    Can’t be trusted to drive until 16.5 or later
    Can’t have aspirin at school w/o parent’s permission
    OK to get abortion and keep it from parents
    Can decide they are “trans” below 12 and parents must agree
    And on and on.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      You know better than that. Parents do not have unlimited control over the upbringing of their children. You can’t hire them out to a local farmer or merchant. You must educate them, either in a school recognized by the state or at home according to state standards. You can’t deny them necessary medical care, even if your religion prohibits the use of doctors. You can’t beat them as much as you wish. You must house them if you can afford it. You must provide them food. If you and your wife separate, the court will decide who keeps the kids and under what conditions. Under some conditions, your rights as a parent can be terminated by the state.

      By the way, who said that children can “decide” they are trans below the age of 12 and “parents must agree”?

      Finally, my daughter never belonged to me. “Belong” refers to property. My house belonged to me. My books belonged to me. My daughter was not property. While she was growing up, she was a human being that I had the privilege and responsibility to care for, to nurture, and to teach, to the best of my limitations, about life.

      1. Eric the half a troll Avatar
        Eric the half a troll

        “You can’t deny them necessary medical care, even if your religion prohibits the use of doctors.”

        In Virginia you can… as horrifying as that is…

        “Abused or neglected child” means any child less than 18 years of age:

        2. Whose parents or other person responsible for his care neglects or refuses to provide care necessary for his health. However, no child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall for that reason alone be considered to be an abused or neglected child.”

      2. walter smith Avatar
        walter smith

        Fundamental disagreement while near fundamental agreement on one aspect. My children were gifts from God. My wife and I were the stewards. But while under our care, they were OURS. Not yours. Not the school system’s. And that is the question – who decides?
        In Cali, a law has been passed or proposed making it a crime for a parent to oppose transitioning. Some NoVa crazy is talking about the same thing. I think it should be a crime to have a child out of wedlock. See how that game is played? (That was actually hyperbole to make the point.) The default choice is the parents. The default choice for being a parent should be Mom and Dad, married. Illegitimacy is the single biggest, easily correctable societal problem, but you people of the Left will never acknowledge that because it conflicts with your religion of sexual libertinism.

        1. DJRippert Avatar

          No kidding. As totally screwed up as our government is … they now want to take over raising children? The government wants to get between the children and the parents because “some parents” wouldn’t agree to woke bull****. And who do liberals think should be the intermediaries between the children and their parents? BigEd? Oh my God. The same incompetents who botched the COVID measures, the same incompetents who need to have the cut rates for the SOLs lowered so they don’t look as bad at their jobs as they actually are? The same incompetents who insist on using CRT as a teaching guideline while not being able to impart basic math skills?

          These are the mindless bureaucrats who America’s libtwits think should be empowered to secretly play amateur child psychologist maybe 15 minutes a day while keeping that insanity secret from the child’s parents?

          The good news is that only a relative fringe of liberal voters agree that parents should be cut out of their minor children’s lives by the failed education bureaucracy. The rest of the voters, including almost all of the independents, see this as absurd overreach by a government that can’t run the schools, can’t withdraw military people and weapons from a country, can’t stop Congressmen from insider trading to be absolutely the wrong answer to disintermediate children from their parents.

          Keep blathering about this, liberals – it cost you the Virginia governor’s election and it will keep costing you elections.

          1. James McCarthy Avatar
            James McCarthy

            “They” are not advocating what you infer that “parents should be cut out of their minor children’s lives.” They are advocating reducing the objectification of children in culture war conflicts.

          2. how_it_works Avatar

            I think you are being totally unfair and need to realize that everyone in the Government is there to service the public…

            …in much the same way that bulls service cows.

        2. James McCarthy Avatar
          James McCarthy

          The article references the stewardship concept. Be clear there was no advocacy of a possessory interest in children. Most of the standards you cite for the protection of children are ingrained in laws adopted by the society you live in. One hopes your plea for compulsory marriage for parents includes same sex couples.

          1. walter smith Avatar
            walter smith

            No it wouldn’t. One hopes otherwise…
            No fault divorce was a mistake too…
            I think the old treatment of gays was largely correct – know it exists, be quiet about it and don’t encourage it… The hypocrisy is tribute that vice pays to virtue concept…
            As to the issues gays used to be concerned about before the Supreme Court created new law were visitation and insurance coverage and estate succession and qualification issues. A sane world could have come up with something for those issues, but I do not believe same sex couples should have children. In fact, why can’t I assert that that is a form of child abuse? I don’t believe that is a healthy environment for a child to be raised. And if you disagree, maybe I can have a law to charge you with a felony… You guys need to call in your totalitarians who want to force people to bake cakes… Freedom is a good thing. One size Leftism is not.

      3. vicnicholls Avatar

        Oh please. To make argument points is just to argue because you’re wrong and know for a fact that EVERY TOTALITARIAN GOVT asserts control over the family/kids, not the parents’ choice.

        That being said, if parents have to provide food, we don’t need WIC or schools providing food. It doesn’t mean we need to provide housing “IF” we can afford it (so its ok for kids to be homeless w/parents). I also suggest you check on medical care, because A&E is not the same as regular medical care, and vaccine shots aren’t always required. Check for Amish schools or shuls. Don’t have to educate them like secular kids.

      4. James C. Sherlock Avatar
        James C. Sherlock

        Would you limit parental authority further than current Virginia law does?

      5. By the way, who said that children can “decide” they are trans below the age of 12 and “parents must agree”?

        Delegate Elizabeth Guzman, for one.

        “What could the penalties be if the investigation concludes that a parent is not affirming of their LGBTQ child? What could the consequences be?” 7News Reporter Nick Minock asked Guzman on Thursday.

        “Well, we first have to complete an investigation,” Guzman answered. “It could be a felony, it could be a misdemeanor, but we know that CPS charge could harm your employment, could harm their education, because nowadays many people do a CPS database search before offering employment.”

        from WJLA web site – emphasis mine.

  2. James Wyatt Whitehead Avatar
    James Wyatt Whitehead

    The 1790 census is limited to what it can reveal about Virginia. The schedule pages turned to ashes during the British burning of Washington DC. By 1850 the census schedules for Virginia reveal numerous data points for study.

  3. In addition, there exists no reference in the Constitution to capital punishment…

    Amendment V

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…

    From a legal standpoint, a capital crime is “one for which the punishment of death is prescribed and inflicted”. It is quite clear that there is

    1. James McCarthy Avatar
      James McCarthy

      Literally, you are correct. The context was meant to covey no Constitutional language to ban or limit capital punishment. The entire sentence must be read beyond the ellipsis.

  4. LarrytheG Avatar

    This is all about wedge issues that the GOP needs to use to peel enough votes from voters that are not their base.

    Law & Order, immigration, CRT, abortion, are strategies Conservatives/GOP use to pull in enough votes from “independents” to give them enough votes to squeak a win in close elections.

    And it works.

    There is no question on some issues what the law is. School attendance, child labor, medical care, etc. The law requires parents to do these things. It’s not up to the parents and for good reason – there are indeed folks out there that not only think they “own” their kids but they control all aspect of their lives.

    1. “This is all about wedge issues that the GOP needs to use to peel enough votes from voters that are not their base.”

      No, Larry, this has nothing to do with “wedge issues.” This is about people being appalled by the insanity they see all around them. It’s about people pointing out the reality that you and your ideological compatriots feel compelled to deny at every turn.

      I do so love it when GOP haters tell Republicans what they really think and why they do what they do.

      1. Wedge issues, indeed. Mr. LarrytheG loves to accuse conservatives of dealing in “wedge issues”.

        The fact is, the ultimate wedge issue is leftists continuously trying to pass laws which give the government more say than parents in how children are reared.

      2. James McCarthy Avatar
        James McCarthy

        There exists an unwritten, general tacit understanding that media refrain from commentary about the children of political figures. Political parties should adopt a similar zip-lip.

      3. LarrytheG Avatar

        Nope. It’s you Conservative types that’s the problem. Can’t and won’t deal with life’s realities.

        I don’t hate the GOP at all – the GOP that existed before now that kept to principles and debates on the merits and were willing to compromise instead of demonize.

        No one has to “tell” you how you think. It’s right out in front of us every day including in BR! Speaks for itself!

        The transgender thing is an example. It’s working the same way you guys dealt with homosexuality a little while back. You just can’t deal with realities that some people are actually transgender. Denying it is what Conservatives do!

        You guys are messed up these days – big time.

        1. James C. Sherlock Avatar
          James C. Sherlock

          I what way do you consider homosexuality an issue identical, or even similar, to medical and surgical gender transition?

  5. James C. Sherlock Avatar
    James C. Sherlock

    You wrote:

    “Children are neither the chattel nor the property of any individual or government. Legally they are persons with unalienable rights that the adult society must acknowledge. Contrary assertions or suggestions are disingenuous, distorting commonly held normative understandings to cater to a political or cultural view.”

    The “chattel” and “property” argument is specious – a classic straw man, as is your image of child labor in a turn of the 20th century sweat shop.

    You emphasize the rights of children. Fair enough. Good topic.

    I ask you as an attorney to offer us your thinking on whether children have the capacity to exercise them unaided. You seem to think they do not, but consider a “village” (government) the proper supervisor.

    For the purposes of a debate on that ground, I am going to discuss first the necessity of adult intervention in the adolescent decision process and then why the Commonwealth of Virginia believes those adults should be the parents.

    The necessity of adult supervision of adolescent decision-making is driven by the fact that:

    “During adolescence, the cognitive network that governs planning, thinking ahead, and self-regulation matures gradually. Under normal conditions, the cognitive network can regulate the social/emotional network. However, when the social/emotional network is highly activated, they do not work together. The emotional network dominates the cognitive network. The result is that emotion, rather than reason, often influences adolescent decision-making.”

    That summary of the science indicates that children and adolescents make immature, emotional decisions uninformed by experience. As their brains develop sufficiently and they gain experience, and become less emotionally driven and can make better risk-reward judgments. (Unless, of course, brain development is interrupted by puberty blockers.)

    In Virginia, the age of majority is 18.

    The question you raise is whether it is the child’s best interest for the state to substitute its judgment for that of the child’s parents who have raised that child every day for years.

    Virginia does not think so.

    I call to your attention two Virginia laws.

    § 1-240.1. Rights of parents. “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child”.

    § 54.1-2969. Authority to consent to surgical and medical treatment of certain minors. Under that law, if the parents are available and not disqualified by the state from making their child’s medical decisions, they have the responsibility.

    Do those laws make “disingenuous assertions” and “distort commonly held normative understandings”?

    1. James McCarthy Avatar
      James McCarthy

      Caramba!!! Your invention of statements is shameful. #1. The image was selected by the Moderator. #2. No definitions of parental authority were advocated in the article. #3. The artic le does NOT offer paradigms for the best interests of children, only that views objectifying them are not helpful. It would, IMO, be in the best interests of children to be deemed persons not objects of possession. Nor was an age offered as to when children may exercise adult decision making. It is – you may wish to appreciate – not a legal standard. Nor was any suggestion made with respect to surgical procedures for children. What is specious, sir, is your analysis and false questions and observations.

      1. James C. Sherlock Avatar
        James C. Sherlock

        You have taken the time to pen a lengthy exposé. Of what exactly?

        You respond to my response to your article with “Who, me?”

        Perhaps I can elicit more specifically for readers what you support or oppose. I will pose specific questions to which you can reply directly.

        Does Virginia law make “disingenuous assertions” and “distort commonly held normative understandings” in its treatment of children?

        Where do you see children “deemed objects of possession”? In what debate are children not “deemed persons”?

        Where is the “contemporary debate” that Ms. Clinton’s book can inform?

        Who among “Virginia’s educational and political leadership” is treating children as “chattel” in the “discourse about parents’ rights in schooling”? And how exactly?

        1. James McCarthy Avatar
          James McCarthy

          Good grief!!! You may be beyond reclamation. The article is NOT an expose, merely commentary upon views and statements (Kerry Dougherty) that tend to objectify children in heated discourse about schooling and parental rights while overlooking those of children. That objectification is being amplified by partisan political discourse. If you cannot handle such views, it is best simply to say so. It ain’t so difficult.

          If you disagree, simply vote the piece down without offering your own distortions or hyperbolic inferences.

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