Day: March 1, 2007

family, foster care, government, system failure
parent-child relationship protected

The Ninth Amendment acknowledged the prior existence of fundamental rights with it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

  • The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental “liberty” interests protected by the Constitution.

  • Thus, the decision in Roe v. Wade, as recently described by the Supreme Court as founded on the “Constitutional underpinning of… a recognition that the “liberty” protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life.” While this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment] …
  • In addition to recognizing as a fundamental liberty interest the right of parents to raise their children, the Supreme Court has also established that the Constitution’s guarantee to fundamental privacy rights also embodies a fundamental right to parental autonomy in child rearing. The Court acknowledged a “private realm of family life which the state cannot enter.” Prince v. Massachusetts, 3210 U.S. 158, 166 (1944); Moore v. City of East Cleveland, 431-U.S. 494 (1977)
  • Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of “liberty” as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620: D.C., WI (1973)
family, government, system failure
Compelling State Interest

The following Supreme Court decisions were cited in a published opinion by Chief judge Norman K. Moon of Court of Appeals of Virginia June 3, 1997 in the case Williams and Williams v. Williams and Williams 24 Va. App. 778; 485 S.E. 2d 651 (June 3, 1997):

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.

The Supreme Court noted its “historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky v. Kramer, 102 S.Ct. 1388; 455 U.S. 745, (1982).

In applying the protection of the Fourteenth Amendment, the United States Supreme Court has held that

“[w]here certain fundamental rights are involved… regulation limiting these rights may be justified only by a ‘compelling state interest’ …and ..legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.

State interference with a fundamental right must by justified by a “compelling state interest.” Roe v. Wade. 410 U.S. 113, 155 ; 93 S.Ct. 705; 35 L Ed 2d 147, (1973)

State’s power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clause of 14th Amendment… fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights… Fourteenth Amendment encompasses and applied to states those pre-existing fundamental rights recognized by the Ninth Amendment.

family, government, system failure
THE CONSTITUTIONAL RIGHT TO BE A PARENT

U.S. SUPREME COURT DECISIONS

Our legal minds will put the cites below to good use. Please feel free to share them with your attorney. For future reference, these are being added to the ACFC legal cites page. – ACFC Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.

Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on the government. Elrod v. Burns, 96 S.Ct. 2673; 427 U.S. 347, (1976).

The United States Supreme Court noted that:

a parent’s right to “the companionship, care, custody and management of his or her children” is an interest “far more precious” than any property right. May v. Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1952).

The Court (U.S. Supreme Court) stressed:

“the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.”

A parent’s interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 U.S. 645, 651; 92 S.Ct. 1208, (1972)

The U.S. Supreme Court implied that “a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S.Ct. 549; 434 U.S. 246, 255-56, (1978)

Law and court procedures that are “fair on their faces” but administered “with an evil eye or a heavy hand” was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, (1886)

The Constitution also protects “the individual interest in avoiding disclosure of personal matters.” Federal Courts (and State Courts), under Griswold can protect, under the “life, liberty and pursuit of happiness” phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law.

There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 U.S. 479, (1965)

Parent’s right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protection public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Reynold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S.Ct. 1598, 435 U.S. 963, Il, (1977)

Parent’s rights have been recognized as being “essential to the orderly pursuit of happiness by free man.” Meyer v. Nebraska, 92 S.Ct. 1208, (1972)

Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S.Ct. 1879; 466 U.S. 429

Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored… the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S.Ct. 1102; 4340 U.S. 268 (1979)

The United States Supreme Court held that the “old notion” that “generally it is the man’s primary responsibility to provide a home and its essentials” can no longer justify a statute that discriminates on the basis of sex. No longer is the female destined solely for the homes and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 U.S. 7, 10; 95 S.Ct. 1373, 1376 (1975)

The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake.Bell v. City of Milwaukee, 746 F 2d 1205: U.S. Ct. App. 7th Cir. WI., (1984)

General
fundamental rights

Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460, 463-464 (WHITE, J., concurring in result)…. MR. JUSTICE STEWART, concurring.

General
family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment

…Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166; Skinner v. Oklahoma, 316 U.S. 535, 541. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170]….

General
consider addressing the rights and liberties of the family

U.S. Supreme Court COOPER v. AARON, 358 U.S. 1 (1958) 358

U.S. 1 COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL.

v. AARON ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Fn No. 1.

Argued September 11, 1958. Decided September 12, 1958.

Opinion announced September 29, 1958.

…Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” I

n 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .”Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136.

A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397-398….

We have forwarded these excerpts from Sup. Ct. decisions to our big list for your information. The American Coalition for Fathers and Children For Membership information call 1-800-978-DADS, or see ACFC’s homepage at: http://www.acfc.org American Fathers Coalition – 2000 Pennsylvania Ave., NW, Ste. 148 Washington, D.C. 20006 1-800-978-DADS (3237) afc@capaccess.org http://www.erols.com/afc Subject: On Fundamental Rights & Mocking The Constitution

In condensing the collection of decisions, it came to me that we are obsessed with the rights of the individual, while at the same time forgetting that one person’s rights become another person’s burden. Yet, all of the intelligent and clever legal and constitutional arguments that are being made have one underlying concern. They are made to demonstrate the presence or absence of the validity that one’s right’s can be made to be inferior to another one’s. At the base of all of this is that no-one exists in isolation. We all are parts (or at least should be) of systems that themselves are parts of levels in a hierarchy of systems comprising civilization.

The very foundation of the whole hierarchy of civilization is the group of social systems made up by these systems: husband-wife; parent-child; sibling-sibling; the family comprised of all of them; and, last but not least, the system of the extended family. Some have recognized that and the one very profound truth arising out that fact: any system is greater than the sum of its parts, but only then if all of the parts interleave, communicate, mesh and function well with one another. All of these clever arguments ignore one important aspect. That is the obligations of an individual to the social systems of which he is a member.

Thereby we ignore the needs and rights of all systems within society, because to demand one’s rights requires that someone else is obliged to grant them. By ignoring obligations, each entity will feel entitled to enforce its rights, if necessary, to the extent that it will rob others of theirs. What we have then is not a well-functioning society anymore that is better than the sum of its parts, but rather a conglomerate of entities, or better yet, a mob – at worst, the end of civilization as we know it. It appears that the best legal minds have not come to terms with that truth, or else they would not be so terribly confused as appears to be the case in the bewildering array of judgments relating to the basic social system of society: the family. Would it be totally unrealistic to ask our legal minds to consider not only whether the state might have rights that are superior to those of the individual, but to think of the family unit in terms of a legal entity that has rights as well – with obligations and rights in relation to both, all of its members and the state?

Would it be totally strange to ask our legislators to consider addressing the rights and liberties of the family and, in connection with that, the obligations that an individual has toward the family and the state? Consider what would happen if we were to build the only one of the Ten Commandments that contains a promise as a constraint into constitutional rights: “Honour thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.” Why are we surprised and dismayed that we can’t do well without it? Are we truly that smart that we can afford to ignore the wisdom that civilization lived by for thousands of years? -WHS

General
consider addressing the rights and liberties of the family

U.S. Supreme Court COOPER v. AARON, 358 U.S. 1 (1958) 358

U.S. 1 COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL.

v. AARON ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. Fn No. 1.

Argued September 11, 1958. Decided September 12, 1958.

Opinion announced September 29, 1958.

…Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” I

n 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .”Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136.

A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397-398….

We have forwarded these excerpts from Sup. Ct. decisions to our big list for your information. The American Coalition for Fathers and Children For Membership information call 1-800-978-DADS, or see ACFC’s homepage at: http://www.acfc.org American Fathers Coalition – 2000 Pennsylvania Ave., NW, Ste. 148 Washington, D.C. 20006 1-800-978-DADS (3237) afc@capaccess.org http://www.erols.com/afc Subject: On Fundamental Rights & Mocking The Constitution

In condensing the collection of decisions, it came to me that we are obsessed with the rights of the individual, while at the same time forgetting that one person’s rights become another person’s burden. Yet, all of the intelligent and clever legal and constitutional arguments that are being made have one underlying concern. They are made to demonstrate the presence or absence of the validity that one’s right’s can be made to be inferior to another one’s. At the base of all of this is that no-one exists in isolation. We all are parts (or at least should be) of systems that themselves are parts of levels in a hierarchy of systems comprising civilization.

The very foundation of the whole hierarchy of civilization is the group of social systems made up by these systems: husband-wife; parent-child; sibling-sibling; the family comprised of all of them; and, last but not least, the system of the extended family. Some have recognized that and the one very profound truth arising out that fact: any system is greater than the sum of its parts, but only then if all of the parts interleave, communicate, mesh and function well with one another. All of these clever arguments ignore one important aspect. That is the obligations of an individual to the social systems of which he is a member.

Thereby we ignore the needs and rights of all systems within society, because to demand one’s rights requires that someone else is obliged to grant them. By ignoring obligations, each entity will feel entitled to enforce its rights, if necessary, to the extent that it will rob others of theirs. What we have then is not a well-functioning society anymore that is better than the sum of its parts, but rather a conglomerate of entities, or better yet, a mob – at worst, the end of civilization as we know it. It appears that the best legal minds have not come to terms with that truth, or else they would not be so terribly confused as appears to be the case in the bewildering array of judgments relating to the basic social system of society: the family. Would it be totally unrealistic to ask our legal minds to consider not only whether the state might have rights that are superior to those of the individual, but to think of the family unit in terms of a legal entity that has rights as well – with obligations and rights in relation to both, all of its members and the state?

Would it be totally strange to ask our legislators to consider addressing the rights and liberties of the family and, in connection with that, the obligations that an individual has toward the family and the state? Consider what would happen if we were to build the only one of the Ten Commandments that contains a promise as a constraint into constitutional rights: “Honour thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.” Why are we surprised and dismayed that we can’t do well without it? Are we truly that smart that we can afford to ignore the wisdom that civilization lived by for thousands of years? -WHS

children, General, health, medicine
Government Advisers: Don’t Use Cold Medicines in Children Under 6

Cold medicine

 

Concentrated Tylenol Infants’ Drops Plus Cold & Cough, right, and Pedia Care Infant Drops Long-Acting Cough, left, is shown in a medicine cabinet of the home of Carol Uyeno in Palo Alto, Calif., Thursday, Oct. 11, 2007. Cold Drug makers voluntarily pulled cold medicines targeted for babies and toddlers off the market Thursday, leaving parents to find alternatives for hacking coughs and runny little noses just as fall sniffles get in full swing. The move represented a pre-emptive strike by over-the-counter drug manufacturers – a week before government advisers were to debate the medicines’ fate. But it doesn’t end concern about the safety of these remedies for youngsters. (Paul Sakuma/AP Photo)

 

 

WASHINGTON – Cold and cough medicines don’t work in children and shouldn’t be used in those younger than 6, federal health advisers recommended Friday.

 

Video

No More Kids Cold Medicine

The over-the-counter medicines should be studied further, even after decades in which children have received billions of doses a year, the outside experts told the Food and Drug Administration. The FDA isn’t required to follow the advice of its panels of outside experts but does so most of the time.

“The data that we have now is they don’t seem to work,” said Sean Hennessy, a University of Pennsylvania epidemiologist, one of the FDA experts gathered to examine the medicines sold to treat common cold symptoms. The recommendation applies to medicines containing one or more of the following ingredients: decongestants, expectorants, antihistamines and antitussives.

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The nonbinding recommendation is likely to lead to a shake up in how the medicines – which have long escaped much scrutiny – are labeled, marketed and used. Just how and how quickly wasn’t immediately clear.

In two separate votes, the panelists said the medicines shouldn’t be used in children younger than 2 or in those younger than 6. A third vote, to recommend against use in children 6 to 11, failed.

Earlier, the panelists voted unanimously to recommend the medicines be studied in children to determine whether they work. That recommendation would require the FDA to undertake a rule-making process to reclassify the medicines, since the ingredients they include are now generally recognized as safe and effective, which doesn’t require testing. The process could take years, even before any studies themselves get under way.

FDA Says Over-the-Counter Med Need Further Study

Simply relabeling the medicines to state they shouldn’t be used in some age groups could be accomplished more quickly, FDA officials said.

Indeed, the drug industry could further revise the labels on the medicines to caution against such use. The Thursday-Friday meeting came just a week after the industry pre-emptively moved to eliminate sales of the nonprescription drugs targeted at children under 2.