The Kidnapping of Edgardo Mortara: Contemporary Lessons in the Child Welfare Wars

Posted: 26 May 2016

Date Written: May 1, 2000

Abstract

This Article examines the contemporary implications of the celebrated 19th Century case of Edgardo Mortara, a six-year-old Italian Jewish child forcibly removed from his family by papal police so that he could be raised by Christians. The kidnapping of this young boy serves as a template for understanding the inherent limitations of the so-called ‘best interest‘ standard, which is still used routinely to justify well-meant but unnecessary interventions into the lives of families who are fully capable of caring for their own children. As evidenced by Edgardo's story, there are old themes inherent in the tension between the rights of families and the State's obligation as parens patriae to protect its children from harm. The Article examines the broad contours of the ongoing debate over the permissible scope of state intervention to protect child welfare. It highlights the tension between the traditions of family autonomy and due process that shelter modern families from such intrusion, and the state's legitimate parens patriae interest in taking steps necessary to guard a child at risk. It then revisits the story of Edgardo Mortara and the aftermath of his kidnapping, suggesting that these competing notions of due process and parens patriae explain much of the battle that defined the future of a boy whose parents' only offense was having been born Jewish. The Article seeks to project the lessons of Edgardo's story into contemporary child welfare history by exploring several more recent episodes that echo many of the same disturbing concerns, concluding that the cautions arising from Edgardo's kidnapping continue to resonate today, and that concerns over unfettered state authority should not be taken lightly.

Suggested Citation

Boyer, Bruce A. and Lubet, Steven, The Kidnapping of Edgardo Mortara: Contemporary Lessons in the Child Welfare Wars (May 1, 2000). Villanova Law Review, Vol. 45, No. 245, 2000. Available at SSRN: https://ssrn.com/abstract=2783956

Bruce A. Boyer (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

Steven Lubet

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-6605 (Phone)

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