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 abuse -- continues.
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
Emerging scandals and conflicts in Indiana and elsewhere should not be allowed
to distract from more fundamental questions: When should a third party have
the terrible right to separate a child from its parents? By what right do
civil servants enter your home and threaten to remove your children if you
do not answer accusations of abuse -- often accusations made anonymously
-- to their satisfaction?
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:
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath or
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
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.
Wendy McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute in Oakland, Calif. Her
new book is Liberty for Women: Freedom and Feminism in the 21st Century.
Reprinted with permission of ifeminists.com.