Solum on Garnett on Pierce

Larry Solum has posted a link to, and some thoughts on, a paper of mine, which was recently posted on SSRN, called "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children."  I wrote:

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

Solum comments:

I was intrigued by Garnett's treatment of the autonomy argument--which he conflates with the notion of "the best interests of the child." Of course, there is a sense in which this conflation is exactly right--the interest of persons in their own autonomy is their "best interest" in a sense, but the terminology is also misleading. Following Rawls we might say that the relevant interest is the interest of persons in developing the two moral powers: "a capacity for a sense of justice and for a conception of the good." (Political Liberalism, p. 19):

A sense of justice is "the capacity to understand, to apply, and to act from the public conception of justice which characterizes the fair terms of cooperation." This sense expresses "a willingness...to act in relation to others on terms that they also can publicly endorse" Id.

A conception of the good includes "a conception of what is valuable in human life." Normally it consists "of a more or less determinate scheme of final ends, that is, ends [goals] that we want to realize for their own sake, as well as attachments to other persons and loyalties to various groups and associations." (PL 19) Rawls says that we also "connect such a conception with a view of our relation to the world...by reference to which the value and significance of our ends and attachments are understood" (Political Liberalism, pp. 19-20)

In particular, when we protect the interest of children in developing the first moral power, we aim to provide persons with the capacity to judge what is in their own best interests and not to impose some particular conception of what particular form of life or conception of the good would constitute those "best interests."

Rick