June 26, 1890
ALTHOUGH we are opposed to the Bennett Law in Wisconsin and its counterpart in Illinois, or anywhere else; and although we should like very much to see those laws everlastingly killed; yet at the same time we are constrained to say that we believe the opponents of those laws in those States have made a serious mistake in making it the issue in a political campaign. We believe that the opposition to those laws could have made a fight and gained a victory in another way, the effect of which would have been infinitely stronger and more lasting than anything that may be done, or any victory that may be gained in the way they are waging the contest. In the other way we believe victory for the opponents of the laws would have been absolutely certain, while in this way victory is at the very best uncertain.
What we mean is, that the opponents of these laws, instead of entering upon a political campaign to secure the repeal of the laws, should have planted themselves upon the ground of personal, private, parental, and religious rights; should have made the plea that those laws are unconstitutional in that they are an unwarranted invasion of such rights; and should have carried their plea to the Supreme Courts of their States. We say that in following this course, we believe victory would have been absolutely certain; because the Supreme Courts of both those States have already decided that it is the right of the parent to direct what subjects and to what extent his child shall study even in the public school; and that this right is above the authority of the public school teacher, or the public School Board. The Supreme Court of Wisconsin said:—
Ordinarily, it will be conceded, the law gives the parent the exclusive right to govern and control the conduct of his minor children, and he has the right to enforce obedience to his commands by moderate and reasonable chastisement. And furthermore, it is one of the earliest and most sacred duties taught the child, to honor and obey its parents. The situation is truly lamentable, if the condition of the law is that he is liable to be punished by the parent for disobeying his orders in regard to his studies, and the teacher may lawfully chastise him for obeying his parents in that particular.
The Supreme Court of Illinois said:—
Parents and guardians are under the responsibility of preparing children entrusted to their care and nurture, for the discharge of their duties in after life. Law-givers in all free countries, and, with few exceptions, in despotic governments, have deemed it well to leave the education and nurture of the children of the State to the direction of the parent or guardian. This is and has ever been, the spirit of our free institutions. The State has provided the means and brought them within the reach of all, to acquire the benefits of a common school education, but leaves it to parents and guardians to determine the extent to which they will render it available to the children under their charge.
Of these decisions Judge Prendergast says:—
It has been decided by the Supreme Courts of Illinois and of Wisconsin that it is for the parents of children attending even the public schools, to determine the extent and the subjects of instruction to be acquired by the child, and that such parental determination is to control school authorities and teachers. If this be the law as to public schools, it is a fortiori the law as to private schools.
According to these decisions the battle of the opponents of these laws has already been fought and the victory won, and all they had to do was to claim the victory as theirs by carrying their case to the Supreme Courts of their States. For their contest is in defense of the parental rights and authority asserted in these decisions, and of private schools. And as Judge Prendergast says, if the determination of the parent is to control the authorities and teachers of the public schools, how  much more must it be so in their own private schools.
In this way the question could have been argued and decided solely upon its merit, in the cool, dispassionate realm of law; all room for political antagonisms and sectarian bitterness would have been avoided; and the victory would have been complete, lasting and beneficial.
As it is, however, entering as they have upon a political campaign to secure the defeat of these laws, the immediate effect will be to multiply party antagonisms; to excite more deeply sectarian bitterness; to involve both the Lutheran and Catholic Churches in direct political action; and even if the campaign prove successful the victory can be but temporary, unless by constant political exertion they shall hold the power they shall have thus gained.
But it is not certain that the opponents of the laws will be successful in the campaign. Reasonably certain it may be; but absolutely certain it is not. There are thousands of men who care very little about the question considered upon its merits, or who, if it were only a case in court, would be inclined to favor the defeat of the laws; yet when it comes to voting for a Roman Catholic, or a candidate pledged to Roman Catholics, will vote against him for that reason only. It is easy enough to say and we agree that it ought not to be so; but that it is so no man can deny.
But suppose the opponents of these laws succeed in electing all their candidates even to the Governor, that in itself does not remedy the evil of the laws. That is a task that still remains to be done by the Legislature; and an important question is, will they be able to secure sufficient power in the Legislature to repeal the laws entirely, or to modify them so as to annul all bad features? or will they be compelled to adopt a compromise in the shape of some ambiguous phrases that will depend altogether upon the party in power for interpretation?
If they should fail in the political campaign and then attempt to make a test in law, it will be at an immense disadvantage. And besides it would be but to stultify themselves. For, to submit a question to the decision of a political campaign is to consent that it is a question which may be justly settled by majorities. It is to agree that you will assent to the decision whatever the result may be. But we do not believe that the Lutherans and Catholics in this case intend to assent to the righteousness of the decision, if they fail in the campaign, if the majority proves to be against them. If they do intend to assent, then they are in a most pitiable plight. The truth is that this is not a question of majorities at all, it is a question of rights only. And being a question of rights, and not of majorities, it has rightly no place in a political campaign.
But admitting it to be properly a question of majorities, even then a political campaign is the last resort. A successful campaign may secure the repeal of the law, but a successful campaign by the other side may at any time secure the re-enactment of the law. Whereas, if a favorable decision of the Supreme Court be given, that kills the law, and every other like it, forever. If, however, the Court should sustain the law, then a campaign issue would be in order.
We are free to say, that we sincerely hope, that, by whatever means it may be, the Bennett Law and its counterpart in Illinois may be so effectually swept away that in practice they may never be heard of more. Yet at the same time we are also free to say that we think the opponents of these laws have made a serious mistake in the method to be employed. The Lutherans and the Roman Catholics in these two States have started upon a course which they will find to be attended with large possibilities of mischief—possibilities of mischief scarcely less if they succeed, than if they fail in the present campaign.
A. T. J.