Wednesday, February 13, 2008

Parental Rights Amendment

The Homeschool community has had much debate and discussion about the proposed Parental Rights Amendment being pushed by Michael Farris and HSLDA as a way to protect parents, specifically homeschoolers, from the encroachment of United Nations initiatives to dictate how children should be raised - that being in the form of the UN Convention of the Rights of the Child and issues stemming from problems parents and homeschoolers have had in the EU. As far as I am concerned, both the PRA and the CRC are horrible pieces of legislation. Both should be avoided entirely. Thankfully, the US has not yet ratified participation in the CRC, and I hope that we never do. These treaties do nothing more then erode our sovereignty.

The issue has been discussed in a bulletin put out by National Home Education Legal Defense (of which I serve as Research Director). NHELD has also put out a series of three bulletins which discusses the UN Convention. ( #54, #55, #56 )

Essentially the Parental Rights Amendment to the US Constitution would say this:
Section 1. The God-given right of parents to direct the upbringing and education of their children is a fundamental right which may not be abridged by the United States or any state.

Section 2. The balancing test applicable to other fundamental rights may be used to balance a claim of parental rights provided that the government establishes its interest by proper evidence in each case.
Sounds good right? Well, not entirely, as the bulletin by NHELD points out.
While NHELD abhors any action by those in power to allow the United Nations or any international entity to install its authority above our United States Constitution, NHELD does not believe that the way to stop that encroachment on parental rights is by a constitutional amendment.

Reading the Constitution as it is written, the Constitution grants to the federal government limited, enumerated powers. The Tenth Amendment to the Constitution specifies that all powers not so specifically enumerated as granted to the federal government, remain powers of the people and of the states.

Education is not an enumerated power granted to the federal government.(even though they act like it is!)

The ability to regulate the rights of parents is not an enumerated power granted to the federal government.

Those are powers that remain powers of the people and of the states.

Making the “rights of parents” fundamental rights in the U.S. Constitution raises those rights to the federal level. The federal government then is better able to assume a power to regulate those rights. The Supreme Court already has “interpreted” the right of parents to direct the upbringing and education of their children as something that can be regulated by government. Up until now, however, the courts have said that it is up to the States to regulate that right. With a constitutional amendment, the road is cleared for the courts to say that the federal government also has the right to regulate.

It is far easier to affect legislation on a state and local level than it is to affect legislation on the federal level. Some states even have elected judges so that if the state courts interpret a state regulation in a manner opposed by the people, the people can elect new judges that may “interpret” the regulations differently. Federal judges are appointed, and they are appointed for life.

Yes, we, as parents and as Americans, are facing a battle. Yes, we must fight that battle. Let’s fight the battle where we can be most effective. Let’s keep the power in the states. Let’s encourage each of our legislators to uphold the Constitution as it is. Let’s educate our government officials and our neighbors about how all of our rights are threatened by the United Nations and international law. Let’s encourage our legislators to appoint federal judges who will not use international law as a basis to decide any court cases. Let’s educate Congress that we will not tolerate anyone disregarding their oath of office to protect and defend the Constitution. Let’s not give the federal government any more ammunition to wrest power from the people. Let’s work to inform other parents about these issues, and embolden them to stop Congress, and the President, from abusing their power whenever they fail to protect and to defend the Constitution.

We need to put a halt to the federalization of parenting as well as the federalization of homeschooling. Advocating for this Parental Rights Amendment is not the way to go to solve this problem.


USM (unschooling mom) said...

Thank you for this post!!

Amie said...

Very well put. If the feds would just keep their nose out of education we would be fine.

Elisheva Hannah Levin said...

I am pleased to see that NHELD understands this issue in a way that Michael Farris does not. Or is it that Michael Farris and his organization want to extend Federal power? Does he think he might have a share in it?

I think he may very well be a dominionist. And even if he is not, this will not be the first time Farris has used his HSDLA cadre against their own interests in order to further his own power.

Blueberry said...

I suspect you may be correct on the dominionist issue:-)

I may be a Christian, but I find dominionism disturbing.

Linda said...

Thanks (again) for laying out the truth and the logic which reveals what many might not see on the surface. These bills "sound" so good. Thanks again...

Dana said...

I agree with you, Judy, but I think you already know that. : ) Just because I'm nice, I'd like to add that I think the only reason this is being pushed by HSLDA is because they are a bunch of lawyers and they see written law to be the means of our protection. Maybe I'm too nice, I don't know. But it seems like rallying opposition to the CRC would be easier than getting an amendment through. Since it was Bill Clinton that signed it in the first place, I can see why they are a little worried about this now...I've been wondering something...why is it that this treaty can just hang around indefinitely? It was signed years ago but it will just hang over us until someone brings it before the Senate? Yikes.

Anonymous said...

I have been researching this issue and ran across your blog. I agree, in theory, that doing away with CROC instead of addressing this issue with a Constitutional Amendment is the way to go. However, I am concerned that it is too late for that in that a federal district court has already ruled in two separate cases that the UNCRC is binding on the U.S. under the doctrine of customary international law.
As I said, I am just researching this issue and am trying to understand the full impact of this threat to my family. Could you comment on your view of treaties becoming binding on a nation under the doctrine of customary international law? It seems to me that we are a little late in our rally call and the Constitutional Amendment is now our only option.

Anonymous said...

See Christians on the PRA website debating the protection of child abuse here:

Amy© said...

Thank you for this post. I have been considering supporting the parental amendment, but have been seeking further information. I do believe parental rights are being undermined, but am undecided whether an amendment is the answer. Again, thank you. I will take this under consideration. Any further information would be greatly appreciated!

Debater said...

Thanks for the post! I've been researching the issue quite a bit and it has offered some nice insight!

I am quite a fan of this sort of libertarian/conservative perspective, but I believe this situation warrants the action set forth in the PRA: The way to protect from an intrusion like the UN CRC is through a Constitutional ammendment- international law can only be overridden by federal level foundational law, in other words a constitution.

Further, the ammendment is a reasonable response concerning federalization and government intrusion: when these rights reside at a local or state level, or even just people in general, that means these people could change their minds and take these rights away. This was the primary difference between the American constitution and the French constitution following their respective rebellions: France based their rights as based in 'society'. When people give rights, they can be taken away. This was the basis for the collapse of rights found in Rossburieu's reign of terror and the Guillotine. Rights important as these shouldn't be arbitrary legislation, but fundemental rights.

Oops... I was a bit lengthier than I intended to be. As I said, I'm researching this alot- the subject is very interesting.

Centaur said...

I understand what you are saying here, but I don't understand how the language of PRA places education in the hands of the government. It seems to say, according to my reading, and Michael Farris' intent as I read it, that the parental right to direct the upbringing of their children will not be infringed upon save on the standard of strict scrutiny.

I don't think I've missed something here: I don't see how this places education in the government's hands, or how it cedes education to the government in any way. Instead, it seems to protect it from the government.

Judy Aron said...

Read the bulletin from NHELD and read the webpage

Debater said...

Thanks for the attention (and the link). I would probably say not so much 'in the hands of' government as 'protected by' government. This making the large distinction between legislation and ammendment.

Very interesting blog! Thanks for the conversation.

JK86 said...

We should explore all pertinent concerns, but the issue is how we can protect parents’ rights given the nature of the threats. Yes, the Senate could vote down the UNCRC, but that only puts the threat to sleep for a while. The Parental Rights Amendment settles the issue permanently so we don't have to worry about the UNCRC and similar threats arising repeatedly under a Supreme Court that is increasingly hostile to parental rights. Regarding the Parental Rights Amendment, the obligation of the government to protect parents’ rights would take the form of a restriction on governmental authority much like the First Amendment.

The current wording of the Parental Rights Amendment does not permit the courts to infringe upon parents’ rights by a mere governmental interest. The Supreme Court recognizes two kinds of rights: fundamental and non-fundamental. “Fundamental” rights cannot be abridged without a governmental interest "of the highest order and not otherwise served." This language is firmly entrenched in historic Supreme Court doctrine as the highest level of protection possible. An amendment is necessary to protect parent’s rights as fundamental.

Another Voice said...

Sorry - NO

Making the “rights of parents” fundamental rights in the U.S. Constitution raises those rights to the federal level. The federal government then is better able to assume a power to regulate those rights. The Supreme Court already has “interpreted” the right of parents to direct the upbringing and education of their children as something that can be regulated by government. Up until now, however, the courts have said that it is up to the States to regulate that right.

With a constitutional amendment, the road is cleared for the courts to say that the federal government also has the right to regulate.

The BEST thing to do is to lobby the Senate and get them to reject the UN Treaty all together. That would truly be a permanent solution.

JK86 said...

I understand your initial caution about state and federal authority, but international law would override both. It simply is not tenable to say that defeating the UNCRC is a permanent solution. The Senate can introduce the treaty repeatedly every year if it so pleases until it passes. I fail to see any permanence whatsoever in this.

One important note about this is that the Parental Rights Amendment does NOT federalize parents' rights. It simply does not follow that we are creating a change in policy by merely enumerating a right (which, according the PRA wording, is a restriction on federal power). We are not obligating the federal government to protect parent's right with legislation--we are obligating the courts to uphold parental rights when bad legislation is made. This is totally consistent with your states' rights argument; the only difference is that the PRA recognizes the right on an individual level.

The recent Supreme Court ruling on the D.C. gun ban is a perfect example. They held, "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia...." Clearly, without the amendment the court would have had no such recourse.

Finally, a Constitutional amendment is the most appropriate way to secure those precious rights we consider the most fundamental. The Declaration of Independence says that men are endowed "with certain unalienable rights," and then, "to secure these rights, governments are instituted among men." The Parental Rights Amendment is part of what it means to institute government for the security of our rights.

Elliot said...

Interesting argument, and it admittedly bears some resemblance to that advanced by the Federalists (specifically Alexander Hamilton) in opposition to the Bill of Rights, but

1. Your argument relies (at best) on an implication that is not explicitly stated in the text of the Amendment. The fact that a right is guaranteed at the federal level does not necessarily mean that the federal government can then regulate the area which is protected from governmental intrusion;

2. Even if we don't think the feds should be regulating education, they are doing it now;

3. Even if the feds don't have the constitutional authority to regulate education, they do have constitutional authority to regulate certain other areas of life, which authority can be used to infringe parental rights if there is no Parental Rights Amendment; specifically, I am thinking of (1) the Taxing and Spending Clause in Article I, Section 8, (2) Article I, Section 8, cl. 17, and (3) Article III, Section 3, cl. 2; (see; and

4. If you object to the Parental Rights Amendment solely on "implication grounds" (something which I will call the Hamilton argument from Federalist No. 84), don't you also have to object to the Bill of Rights on the same grounds? After all, nothing in the Constitution gives Congress the specific right to regulate speech, religion, or guns, right?

Having said all that, I find this post thought-provoking. Thanks for sharing.