L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 256, January 25, 2004
"From the ashes a fire shall be woken"
A Man's (and Woman's) Home is a Castle
Special to TLE
The story of Anthony Bars the 4-year-old boy who was starved and beaten to death in Indiana by foster parents with a criminal record of child abusecontinues. Due to media and public outrage, the caseworker who recommended removing Anthony from an earlier, loving foster parent is facing charges. Denise Moore is accused of official misconduct and of falsifying reports in an adoption proceeding: misdemeanor offenses.
Sadly, Anthony is just one in a long list of children neglected or abused by Child Protective Services in state after state. In his case, the press is still pounding on why child welfare officials never disciplined Moore for her actions and cited state confidentiality laws at almost every question asked. But emerging scandals and conflicts in Indiana and elsewhere should not be allowed to distract from more fundamental questions.
By what right do civil servants enter your home and threaten to remove your children if you do not answer often-anonymous accusations to their satisfaction? When should a third party have the terrible right to separate a child from its parents?
The increased power of child welfare agencies to do so comes from legislation dating back to the Mondale Act of 1974. That act established huge financial incentives for state agencies to uncover abuse, without providing checks or balances to protect those wrongfully accused. It also virtually immunized child welfare workers and false accusers from liability.
But a power is not a right. If it were, then everything you have the power to do would also be proper for you to do.
What, then, are rights?
A right is an enforceable claim that an individual has against all other people; it carries a corresponding duty to respect those rights in others. For example, your right to freedom of religion comes with the corresponding duty to respect the right of others to reach their own conclusions. Rights and responsibilities are two sides of the same social coin.
Otherwise stated: every peaceful human being has a moral jurisdiction over his or her own body and property that no one else can justly violate.
Few acts symbolize this moral jurisdiction more clearly than the right to close a front door behind you and lock out the world. This act dramatizes the difference between the private and the public spheres.
"A man's home is his castle" is a phrase coined by civil rights attorney Clarence Darrow. It means people are rulers within their own homes, which others have no right to enter without permission. The concept is embedded within the Bill of Rights, specifically the Fourth Amendment:
This concept is a line of defense for the individual and family against unwarranted intrusion by government.
What constitutes warranted intrusion? A credible and specific reason to believe the rights of people within that house are being violated.
It becomes proper for third parties to break down a door for the same reason it is proper for them to stop a mugging on the street: to protect the victim. If a parent uses violence against a child, he or she has abandoned the responsibility to respect the rights of others. He or she can no longer demand an automatic and similar respect from others.
In short, the Fourth Amendment is not a blank check to engage in violence under the guise of privacy. But it is a clear and compelling demand that any individual or agency who breaks down a door must do so on credible evidence not anonymous tips and that everyone accused must receive due process. Moreover, any third party who is later found to have acted from malice or other gross misconduct should be legally liable for those actions.
The fact that parents accused of child abuse are not currently accorded due process indeed, they are "guilty until proven innocent"reflects a 180 degree change in society's attitude toward the home and the family. The family used to be viewed as a private realm into which the law entered with extreme caution.
Since the '70s, however, the family per se has been under attack as a breeding ground of domestic violence, child abuse, and other brutality. This change in attitude is largely rooted in a brand of feminism that arose in the '70s: gender feminism, which has exerted great influence over laws concerning women and children. Gender feminism views men and women as separate and antagonistic classes, with the family being another expressed of gender conflict.
Accordingly, a closed door in-and-of-itself is reason to suspect the presence of violence. Warrants, probable cause, and oaths are no longer deemed necessary.
They should be.
And, without them, front doors in North American should slam shut and remain closed.
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