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Attorney Deborah G. Stevenson, Executive Director
Bulletin #67 The Parental Rights Amendment 04/01/09
Warning to parents: A Constitutional amendment purporting to protect the rights of parents actually could erode the rights of parents even further.
At the behest of another homeschool organization (HSLDA), Congressman Pete Hoekstra of Michigan, once again, has introduced a bill that would amend the United States Constitution, ostensibly to protect the right of parents.
It is called H.J.RES.42 - Proposing an amendment to the Constitution of the United States relating to parental rights, and can be found at http://www.govtrack.us/congress/bill.xpd?bill=hj111-42 and http://thomas.loc.gov/cgi-bin/query/z?c111:hj42:
Congressman Hoekstra has been told by HSLDA that if such a Constitutional amendment were adopted, it would protect the rights of parents. On his website (http://hoekstra.house.gov/), Congressman Hoekstra has a video in which the Congressman explains that he thinks parents should have a choice in how they educate and medicate their children, and that the Constitutional amendment also would provide protection against some of the provisions in the United Nations Convention on the Rights of the Child. Congressman Hoekstra says that the Constitutional amendment would protect the rights of parents, except, of course, when a parent is abusive or neglectful, and in that case, the government would have the right to intervene on behalf of the child.
All of that sounds well and good, but the Congressman apparently has not thought things through to consider the ramifications of such a Constitutional amendment and its negative effect on the rights of parents.
Right now, under the existing United States Constitution, the rights of parents already are protected by virtue of the tenth amendment. That amendment states “The powers not delegated to the Unites States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the Constitution places severe limitations on the power of the federal government and only grants to the federal government certain, specifically enumerated powers. If the Constitution has not specifically granted a power to the federal government, then that power is reserved to the States and to the people. The Constitution does not grant any power to the federal government to regulate anything involving the rights of parents. That power is a power left to the States and to the people.
The federal government, right now, has absolutely no Constitutional authority to tell you, the parent, what to do about anything involving your children.
If the newly proposed Constitutional amendment is adopted, however, the federal government will have the power to tell you, the parents, whatever it chooses to tell you about anything involving your children.
If you make the rights of parents a federal Constitutional right, the federal government has an obligation to “protect” that right. The way that the federal government “protects” that right is through implementation of federal statutes and federal agency regulation. And let’s not forget, that when there is any dispute involving those federal statutes and regulations, the federal courts will be used to resolve those disputes by “interpreting” the meaning of the Constitutional amendment.
Now, what Congressman Hoekstra points out is true: under such an amendment the federal government will have the authority to determine when it is necessary to intervene to protect children from neglect or abuse. Right now, that authority rests with state governments. State governments protect children from abuse and neglect through state laws and state agency regulations. Most of us know those state agencies that are given the authority to implement those statutes and regulations as the Child Protection Services Agency, the Department of Children and Families, or other such names. While many in those agencies may be good people with good intentions who genuinely try to protect children, often we hear the horror stories of these agencies overstepping their authority, in the name of protecting the children, and taking children away from their parents for unnecessary or improper reasons. Many times, in many states, these agencies have argued to courts, which have agreed with the argument, that these agencies must take the children from their parents “in case the parents might abuse or neglect the children at some point in the future”. That’s called the doctrine of “predictive neglect.” Many parents have fought hard in their state legislatures to effectuate changes in their state statutes and regulations to curb the over-extension of authority on the part of these state agencies, and many have been successful at doing so.
Now, imagine this: Imagine having to stem the abuse of authority on the part of a federal Department of Children and Families. Imagine just having a federal Department of Children and Families. Imagine having yet another federal governmental agency, this time, established to review parental decisions and to implement and enforce new federal legislation involving the rights of parents. Imagine having to try to change any of those federal statutes or regulations. Imagine trying to stop a federal bureaucracy from overstepping its bounds and intruding on the rights of parents. Is that really what you want?
That’s not even the worst of it. When disputes arise, and arise they will, those disputes will involve the United States Constitution and federal laws. Who will resolve those disputes? The federal courts will. You will have federal district courts and the Supreme Court “interpreting” the meaning of the Constitutional amendment and all the federal statutes and regulations that will be generated by its implementation. The federal courts will use a standard, one that is placed in the proposed Constitutional amendment itself, to review the facts involving the dispute. That standard of review is called “strict scrutiny”. That means that the federal government is only allowed to restrict fundamental rights protected by the Constitution if the federal government has a compelling governmental reason for the restriction. What is a “compelling” government reason? Whatever the court decides it is.
It is possible that the courts could decide that the federal government has a “compelling” interest in restricting the rights of parents to allow children to be educated in diverse curricula, religious or spiritual cultures of other nations, or in matters involving reproductive freedom, to name just a few issues. It is possible that courts could decide that the federal government has a “compelling” interest in restricting the rights of parents to allow children to obtain vaccines, to receive medications for depression, and to have therapeutic abortions, with or without parental consent. It is possible that the federal courts could decide that the federal government has a “compelling” interest in restricting the rights of parents to choose the form of education for their child, particularly when federal taxpayer dollars are used to pay for any part of that education or educational benefit. It is also possible that the federal courts could decide that the federal government has a “compelling” interest in ensuring that children are educated in accordance with the principles enshrined in the United Nations Convention on the Rights of the Child, even though it has not been ratified yet.
Even more frightening is the fact that a federal court could determine that because of the supremacy clause of the Constitution, any one of the new federal statutes or regulations that might arise that conflict with any one of the existing state laws that may provide more protection for the rights of parents, the state law, because it conflicts with the federal law, is therefore rendered null and void.
All things are possible when issues are brought before a court.
Right now, however, issues of whether the government should intrude in the rights of parents are resolved on the state level, not on the federal level, and appropriately so. The states have that authority, and have had that authority, since the adoption of the Constitution in 1787. When the authority remains at the state level, parents are more readily able to effectuate change in intrusive legislation and regulation.
More importantly, parental rights already are protected from intrusion by the federal government. A Constitutional amendment, however, well-meaning, in the long run will have consequences that are exactly opposite to the goals intended. A Constitutional amendment will only add another layer of bureaucracy, and grant additional power to the federal government that it does not have, to further restrict the rights of parents in untold and unimaginable ways.
For these reasons, please, do not support this well-meaning but severely misguided effort to adopt a Parental Rights Amendment to the U.S. Constitution.
Judy Aron - Director of Research, NHELD – firstname.lastname@example.org