ML/NJ
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The Parens Patriae Powers
The 1852 compulsory schooling legislation of Massachusetts represents a fundamental change in the jurisprudence of parental authority, as had the adoption act passed by the nearly identically constituted legislature just four years prior, the first formal adoption legislation anywhere on earth since the days of the Roman Empire. Acts so radical could not have passed silently into practice if fundamental changes in the status of husbands and wives, parents and children, had not already gravely damaged the prestige of the family unit.
There are clear signs as far back as 1796 that elements in the new American state intended to interpose themselves in corners of the family where no European state had ever gone before.
In that year, the Connecticut Superior Court, representing the purest Puritan lineage of original New England, introduced "judicial discretion" into the common law of child custody and a new conception of youthful welfare hardly seen before outside the pages of philosophy books—the notion that each child had an individual destiny, a private "welfare" independent of what happened to the rest of its family.
A concept called "psychological parenthood" began to take shape, a radical notion without legal precedent that would be used down the road to support drastic forcible intervention into family life. It became one of the basic justifications offered during the period of mass immigration for a compulsion law intended to put children under the thrall of so-called scientific parenting in schools.
Judicial discretion in custody cases was the first salvo in a barrage of poorly understood court rulings in which American courts made law rather than interpreted it.
These rulings were formalized later by elected legislatures. Rubber-stamping the fait accompli, they marked a restructuring of the framework of the family ordered by a judicial body without any public debate or consent. No precedent for such aggressive court action existed in English law.
The concept lived only in the dreams and speculations of utopian writers and philosophers.
The 1840 case Mercein v. People produced a stunning opinion by Connecticut’s Justice Paige—a strain of radical strong-state faith straight out of Hegel:
The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of the government.
As the opinion unrolled, Paige further explained "with the coming of civil society the father’s sovereign power passed to the chief or government of the nation." A part of this power was then transferred back to both parents for the convenience of the State. But their guardianship was limited to the legal duty of maintenance and education, while absolute sovereignty remained with the State.