Tuesday, May 06, 2008

Parental Rights Amendment?

I'm thinking no.

There are many proponents of a so-called Parental Rights Amendment, an actual amendment to the actual Constitution. HSLDA is one of the organizations that support it. (Beware the "it's almost too late, look what happened with gay marriage" alarmist argument at the beginning of the article! Honestly.)

The idea behind this amendment is that until and unless there is specific language in the Constitution defining and declaring that parents have a right to raise their children as they see fit, then there can be no real protection against government interference in legitimate parental issues.

I think this idea, while well-intentioned, is backwards. Because rights are not issued to us from the Constitution--they are objective and derived from reality and the Constitution exists to protect those rights. In other words, just because a right isn't specifically named in the Constitution doesn't mean it isn't a right and you aren't entitled to protection from violations. (If you can work your way through all those negatives, that sentence might make sense!)

Man holds these rights, not from the Collective nor for the Collective, but against the Collective—as a barrier which the Collective cannot cross; . . . these rights are man’s protection against all other men.
--Ayn Rand, “Textbook of Americanism,” The Ayn Rand Column, 83.

The source of man’s rights is not divine law or congressional law, but the law of identity.
--Ayn Rand, Galt’s Speech, For the New Intellectual, 182.

(Above quotations via the online Ayn Rand Lexicon)

And also, here's the 9th Amendment, already in the Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

We parents, we're already covered, by virtue of the fact that we are American citizens. (You might be thinking about the 14th and 19th Amendments, which were not special-interest-group kinds of Amendments. They corrected fundamental errors that existed in the original writing of the Constitution.)

An recent article by Larry and Susan Kaseman of Home Education Magazine spells out many of the ways in which a Parental Rights Amendment would create more problems than it would solve. It's an interesting read. I especially liked the "What We Can Do" section because it illustrates the many ways in which we can be proactive in protecting our rights (which exist outside of an official Amendment). It's something we should all do in every area of our lives, every time our rights are infringed upon. Just a few examples from that section (emphasis mine):

What We Can Do

We can be aware of the challenges to parental rights, keep up to date, and watch for developments that require response. We can inform others through informal conversations, support group meetings, letters to the editor, etc.

We can continue to homeschool our children and exercise our rights in other ways, including taking responsibility for decisions involving our children's growth and development, health care, and moral and spiritual development. By actions such as these, we increase our confidence and ability to take responsibility for our families and our lives. We set an example for other parents and help them understand what options they have and how capable they are. We also set an example for our children.

We can object when our parental rights are challenged and insist that they be respected, whether it be officials implying that we are legally required to bring our children in for preschool screening, school officials demanding to review and approve our homeschooling curriculum in states that do not require this, medical personal asking personal questions not required by law during a routine check up or an emergency room visit, or other such situations. We can avoid setting precedents that will cause problems for other parents and possibly for us in the future by not voluntarily complying with requests or demands from officials that exceed their authority under the law. When an official tells us that we must do something, we can ask for a copy of the statute that requires such action.

Lots of people are confused as to the proper role of government. We don't work for them--they work for us. When they step out of line, it's up to us to help them step back over. That doesn't usually entail passing more laws or Constitutional Amendments. (The occasional thwack on the forehead might help, though.)


Cal said...

Besides your broad point about the danger of boxing ourselves in by the enumerating of rights (a position as old as the constitution itself), the specific language of this amendment is wishy-washy.

With Section 2 in place, why cannot a government claim it has "an interest" in giving a child a particular type of education?

The amendment makes no attempt to explain what it means by "the highest order"? How is any judge to decide this objectively?

Kim said...

I actually posted about this when it was distributed in our e-mail homeschool support group.

In the interest of transparency, I believe that group members should be aware that HSLDA has a two-fold agenda in supporting this amendment.

One reason is to ensconce parental rights in the constitution. Some people do not support this idea for various reasons http://www.nheld.com/BTN58.htm.

Another reason HSLDA is pushing for a constitutional amendment is specifically religious--to have a religious belief adopted into the ultimate law of the land, the federal constitution. The proposed wording for this amendment (according to this report from HSLDA http://www.hslda.org/courtreport/V22N4/V22N411.asp) is explained this way:
We believe that raising and educating our children is a God-given right and responsibility. The proposed amendment will assert just that. If it passes, this will be the first time God’s name appears in the language of the Constitution.

ParentalRights said...

To facilitate clear discussion, read the text of the amendment here: Read the text of the draft amendment here,
http://www.parentalrights.org/learn/the-solution-a-constitutional-amendment/read-the-amendment. The the link that Kim posted is not from ParentalRights.org and is inaccurate.

Your post made some interesting points, but the reality is that parental rights are not being protected! Yes, the Constituion does support parental rights, but unless parental rights are enumerated in the Constution, judges are free to ignore them.

The Constitution has two functions. First it empowers and authorizes the federal government. Second, it limits the power of government. Our Parental Rights Amendment prevents the government from exercising power over parental rights unless it has an “interest of the highest order not otherwise served” (section 2 of the proposed amendment). As the Bill of Rights and other constitutional amendments have protected our rights from governmental intrusion, so the Parental Rights Amendment would protect parental rights from being attacked. Our proposed amendment would cement current Supreme Court doctrine into the text of the Constitution and mitigate the possibility of parental rights being further eroded by American courts. We are working within the scope of our legal system to ensure that parental rights are protected.

This amendment is necessary since parental rights remain vulnerable to attack. While the Supreme Court has made generations of decisions upholding the fundamental nature of parental rights and protecting the vital relationship between a parent and child (see http://www.parentalrights.org/learn/the-attack-on-parental-rights/supreme-court), Troxel v. Granville (the latest Supreme Court case on parental rights) did not define parental rights to be "fundamental" (only four judges supported fundamental rights). Traditionally a conservative judge, Justice Scalia argued that although he supported fundamental parental rights, he did not want to term them “fundamental” since they are not explicitly stated in the Constitution. If parental rights were protected by an explicit amendment, judges like Scalia (or judges who do not support parental rights) would be obligated to do so.

Most importantly, an amendment is the only way to mitigate the threat of international law. You can read more about the threat from international law here, http://www.parentalrights.org/blog/tag/customary-international-law or, http://www.parentalrights.org/learn/the-attack-on-parental-rights/international-law

Kim said...

HSLDA is parentalrights.org. Although it is very difficult to find that out from the parentalrights.org website. If the wording of the ammendment has been changed, I'm glad. I still wouldn't want any of my money supporting any group who tries to entomb their religious beliefs in law (HSLDA lobbies on a number of religious fronts). All of the arguments by NHELD still hold. The last thing we need is more thinking that the ammendments to the constitution are the only rights granted.

Elisheva Hannah Levin said...

Thanks so much for this.

I can barely think at all this week being on terminal oveload, but you've got it exactly right.

Such amendments to the constitution aren unneccesary and could be damaging precisely because the implicit reasoning is that we only have rights if our government grants them or guarrantees them or writes them into law.

In reality, some laws are evil (I know that's strong language but I think it applies here) because they attempt to violate the natural rights of human beings. In those cases, it is up to us to protect our rights if the government fails to do so, by civil disobedience (a la your "Heroic Me" post) or more active resistance, if necessary.
In a sense, we are not free unless we act on our own freedom even in defiance of ill-advised (at least!) attempts by governments to curtail those freedoms.

Finally, I am very suspicious of any initiative from HSLDA because in my judgement, the leadership there is not interested in the best interests of homeschoolers per se, but is using the organization as a platform to obtain power to make a certain brand of Christianity the state religion.