In the spring of 2020, Harvard University law professor Elizabeth Bartholet created a stir when she publicly advocated for homeschooling to be banned in the United States. She alleged that large numbers of home schooled children were being abused, improperly educated, and taught hateful ideologies (ostensibly by their parents.) Of course, home educators across the country were outraged by such blatant misinformation..Some advocates of government-controlled schooling — like Bartholet herself — like to create false narratives of scary homeschooling parents who keep their children in cages to prevent them from learning to read and write. It’s all rubbish, of course. But proponents of compulsory government schooling like to exaggerate any problems in private education while ignoring the failures of the government system..Bartholet makes her strongest case against homeschooling in an Arizona Law Review article entitled Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection. Naturally, criticism of the article focused on her opposition to home education. But there is another aspect of the article that has received insufficient attention, namely, that Bartholet loathes the U.S. Constitution because it protects individual freedom..There has long been a distinction in political theory between what are called “negative rights” and “positive rights.” Negative rights restrict the power of government and thereby make space for individual liberty. For example, the historic rights to life, liberty, and property are negative rights because they prohibit the government from killing innocent people, imprisoning innocent people, and confiscating the property of innocent people, etc..Positive rights, on the other hand, are a more recent invention that requires active government intervention to provide services. For example, some people claim that there is a right to education. In effect, that means the government must operate a school system for all children. A right to health care means the government must provide health care, and so on. However, in order to fulfill such positive rights, the government must tax wealth away from other citizens to make services available..Positive rights by definition require the state to take from one group of citizens, and give to another..Positive rights can mean even more, however. In the context of education, people like Bartholet consider the right to education to be an obligation upon government to restrict the liberty of parents to raise their children. For many progressives, government officials are more qualified than mere parents to know what is best for children, especially when it comes to schooling. Therefore, parents should only influence the education of their children under the watchful eye of the state..However, the U.S. Constitution does not recognize the positive rights desired by progressives, and this is what makes Bartholet so angry. As she puts it in her law review article, the “U.S. Constitution with its negative rights structure is an anomaly, outdated and inadequate by the standards of the rest of the world.”.Unlike the U.S., most countries’ constitutions do not restrict the power of the state to such a large degree. That is to say, most constitutions do not protect as wide a space for individual freedom as does the U. S. Constitution. Rather than arguing other countries should become freer like the U.S., Bartholet argues the U.S. should become less free by conforming itself to the standards of other countries, normally with more authoritarian histories..Notice how she compares the U.S. Constitution unfavourably with that of other nations: “The U.S. Constitution’s focus on negative rights represents an older western constitutional tradition, ‘increasingly out of step with emerging constitutional norms . . . in the rest of the world.’ Almost all other countries provide positive rights. Human rights treaties show this same trend. Relatedly, few other countries have constitutions placing the high priority our federal and state constitutions do on adult autonomy rights, including parent rights to raise children free from undue state intervention.”.Bartholet considers “parent rights to raise children free from undue state intervention” as a problem to be solved. She wants “undue state intervention” to be permissible, but currently, such intervention is unconstitutional — as it should be..In contrast to the U.S., Bartholet cites favourably the example of Germany, where there are fewer compunctions about state intervention into families, and a ban on homeschooling is strictly enforced..Bartholet explores ways of increasing government restrictions on homeschooling, with the ultimate goal of banning it altogether. But she acknowledges a great barrier to her goal, namely, “the emphasis in the language of the Constitution on protecting individual rights against state action.”.Clearly, Bartholet recognizes the greatest obstacle to banning homeschooling is the constitutional protection of individual rights. Her quarrel is with the U.S. Constitution itself. She wants it changed to increase government power. Thus, the success of Bartholet’s political project would dramatically diminish the freedom of every American, not just homeschoolers..Progressive ideology is a threat to the historic liberties of every country with a strong individual rights tradition, including Canada. Bartholet’s argument for authoritarian state power makes this plain for all to see..Michael Wagner is a columnist for the Western Standard
