The Parental Rights Amendment: A trojan horse
Posted by americana83 on February 18, 2010
Here is the amendment, which purports to protect parental rights and, on a glance actually appears to do so.
Section 1. The liberty of parents to direct the upbringing and education of their children is a fundamental right.Section 2. Neither the United States nor any State shall infringe upon this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.
Section 3. No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.
Section 2. Neither the United States nor any State shall infringe upon this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.
SECTION TWO
Neither the United States nor any State shall infringe upon this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.
SUMMARY: While parental rights do not include a right to commit child abuse or neglect, they are due the same high legal protection as other fundamental rights.
Notice that the summary they provide includes specific examples: abuse/neglect. “Governmental interest,” while it COULD mean those things, cannot be logically or honestly claimed to be limited to those things. We are talking about politicians that have difficulty interpreting easy to understand phrases as “right to bear arms.” They will have a heyday with “governmental interest.” Just look what they’ve done with the commerce clause:
“…demonstrating that its governmental interest as applied to the person…”
Because fundamental rights are so important to our freedom as Americans, the government must meet a heightened burden of proof in order to restrict those rights. In legal terms, the government’s case begins with a positive demonstration – they must prove that there is a government interest in restricting the right, and that the government has a specific interest in restricting the right of the particular parents whose actions are being challenged. In early 2006, the U.S. Supreme Court used this very language when talking about violations of religious liberty. According to the Court, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirito Beneficiente Uniao do Vegetal, 548 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents.
Yes, it is called due process. Life liberty or property shall not be taken without due process, regardless of the “governmental interest.” This amendment does not provide any such “heightened burden of proof,” merely that the government thinks its interest in the child is greater than the parent’s and is not being served by the parents. It sets a very low bar, and leaves parental rights at the mercy of liberal bureaucrats and other social engineers.
“…of the highest order and not otherwise served.”
In 1972, the U.S. Supreme Court held that in order for the state of Wisconsin to override the rights of Amish parents, the government had to show that it had a compelling interest in requiring students to stay in school until age 16. Speaking of the right of the parents, the Court said that “the essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (emphasis added).
The Supreme Court has required the government to follow this standard whenever there is a violation of a fundamental right. Prominent examples of this are cases that deal with racial discrimination (see Adarand v. Pena, 515 U.S. 200, 227 (1995): “All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. . . . Such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests”), restrictions on free speech (see Widmar v. Vincent, 254 U.S. 263, 269-270 (1982): Whenever discriminating against speech on the basis of its content, the government “must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”), and invidious discrimination against religion (see Church of the Lukumi Babalu Aye, Inc., v. Hialeah, 508 U.S. 520, 546 (1993): “To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.” In all these cases, the government must prove that it has a compelling interest, before the fundamental freedom at stake can be limited.
Again, this amendment does not spell out what “governmental interest” actually means, and leaves the door open to great federal abuse of this newly codified interest. The focus on religious practice here readily suggests that section 2 could be used to remove children from christian or other families that believe homosexuality or other behaviors are immoral and against God. The reason that would be cited is a “governmental interest” of the highest order in “promoting diversity and inclusiveness” and fostering a “tolerant society.”
We tend to read into a bill that we want to like those things that would make it likable. The reality of this would be amendment is that it opens the legal door to massive federal interference in the rights of parents to raise their children. And as far as the “UN Convention on the rights of the child,” Section 2 of this amendment makes section 3, professing to forbid treaties undermining parental authority moot- if said treaty is “in the utmost interest of the Government.”
This Amendment, as well as the UN Convention on the rights of the Child must be opposed by all who love freedom and want to raise up their children according to the laws of nature and Nature’s God.
Michael said
Thank you for calling attention to the Parental Rights Amendment, HJ Res. 42, which now has 129 cosponsors in the US House. Unfortunately, your presentation of it is lacking in legal understanding. You confuse the legislative and judicial systems throughout, with such statements as We are talking about politicians that have difficulty interpreting easy to understand phrases [such] as “right to bear arms.” Actually, we are talking about judges who are bound by the text of the Constitution and by Court precedent. Nearly every phrase of the Amendment, including especially those in Section Two, arises from existing Supreme Court cases so that its definition is already determined. The Supreme Court has already determined in many cases what does and what does not constitute a “governmental interest of the highest order,” which phrase appears in more than 100 federal cases of record. A “governmental interest” in legal terms does not refer to the personal interests of politicians as the author implies, but to the obligations placed on our government through duly enacted legislation, such as the obligation to protect persons (children or otherwise) from abuse or neglect. When these governmental obligations (or “interests”) compete with personal fundamental rights, a standard is already in place within our court system which holds that the governmental interest (obligation) must be of the highest order, and that there must be no other way of serving that interest than to violate that fundamental right. This is the standard for all fundamental rights; it should apply to parental rights as well. The Amendment does not contain any language empowering the Congress to define, limit, or otherwise infringe parental rights. This author’s assertions or implications to the contrary are simply not rooted fact. The proposed Amendment will no more empower the government to violate parental rights than the First Amendment empowers them to violate free press or free speech, or than the Second Amendment empowers the government to violate our right to bear arms. Any claim that an amendment necessarily gives the government power over an area of law because it tries to preserve that area of law, ignores or fails to understand the entirety of the Bill of Rights. The proposed Parental Rights Amendment does not.
americana83 said
Michael, thank you for taking the time to read my post.
As our system has devolved from its original intent, the supreme court has been granted authority to redefine law as it sees fit, such as the move unilaterally legalizing abortion across the 50 states. Though there may well be a special meaning granted to “governmental interest” the fact is the language itself is vague enough that a mere rearranging of the supreme court towards activist judges would enable an “interpretation” redefining “governmental interest.” Which, a straight forward reading could easily render any number of areas which might be of interest to the government.
Further, even had the specific terms “abuse and neglect” appeared in the text of the amendment in lieu of the phrase “governmental interest,” they would still be deficient if they lacked clear definitions within the text.
There are those in power now that define Christianity as abuse, and homeschoolers as being neglected in their social development.
I am sure proponents of the amendment mean well, but the political reality is that progressive politicians could very easily seize on the text of section 2 to greatly expand the newly created federal “government interest” in children beyond those concepts mentioned, all through “duly enacted legislation.”
As I said in the article, sections 1 and 3 are great; however, section 2 makes them both moot.
The 10th amendment already covers parental rights. Powers not granted to the government, nor prohibited by it to the states are reserved to the states respectively, or to the people. There is no Federal interest in Children as it stands, and this amendment, as it is currently written, will create a new and powerful government interest in children.
As long as the easily re-definable term governmental interest, or some similarly vague terminology remains in this amendment creating a governmental interest in children, I cannot support it.
Michael said
Thank you for your response. I disagree with two of its assertions, however:
1. That Section 2 would be used “to greatly expand the newly created federal ‘government interest’ in children beyond those concepts mentioned, all through ‘duly enacted legislation’.” My issue is, first, that the Amendment will not create any “newly expanded federal government interest.” Recognizing your belief that politicians will create one anyway, I won’t argue the point, but I do disagree with it. I don’t think either of us can PROVE what WILL happen, of course.
What I must take issue with, however, is the mention of “duly enacted legislation.” Unlike Amendments XIII, XIV, XV, XVIII, XIX, XXIII, XXIV, and XXVI, the proposed Parental Rights Amendment does NOT include a line empowering Congress “to enforce this article by appropriate legislation.” If it did, your argument would be correct. Since it does not, however, Congress gains NO POWER over parental rights that it does not already have. None. Period.
2. “The 10th Amendment already covers parental rights.” This is seemingly true as long as we do not ratify a treaty on the subject, such as the proposed Convention on the Rights of the Child. If we do, however, the 10th Amendment will not protect parental rights. “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.” Reid v. Covert 354 U.S. 1 (1957)
Also, I say “seemingly true,” because the Supreme Court in Troxel v Granville, 530 U.S. 57 (2000)determined that parental rights are not afforded the same legal protection as other fundamental rights, but should instead receive “some special weight” when being considered against the interests of the child, the state, and even third parties, to be decided on a case-by-case basis. Even now, the 10th Amendment fails to protect the right of fit parents to direct the upbringing of their children in practical court application. In fact, there is no federal case of record in which the 10th Amendment was successfully argued to provide a sufficient defense for traditional parental rights.
I do appreciate your caution with regard to the amendment, and your willingness to discuss it rationally in this forum. Having studied it closely, however, I remain convinced that Section Two merely restates Section One. Where Section One enumerates parental rights as “fundamental rights,” Section Two enumerates what is already the accepted legal standard to be applied to a “fundamental right.” The two go hand-in-hand.
americana83 said
“governmental interest as applied to the person is of the highest order and not otherwise served.”
It may be established by case law that “governmental interest” when pertaining to children has a very clear and limited meaning. However, in a 5-4 decision (Heller), the supreme court nearly overturned the clear and literal meaning of “The right of the people to keep and bear arms shall not be infringed.”
My greatest concern is that if this amendment were in the constitution now, and a progressive president got the chance to replace one of the remaining ‘conservative’ justices, they could easily jettison precedent and create a broad swath of areas where the government is interested in the person, all without abusing the written word of the second section of this amendment. The Supreme Court and the federal courts appear in some cases to be as much politicians as interpreters of the law, with the latest addition to the highest court “joking” about legislating from the bench.
They could even pretend to be strict constructionists, taking their definition not from case law, but from the actual words of the amendment and interpreting governmental interest as exactly that, any realm where the government would have a vested interest in the person, whether economic, social or otherwise, bringing the possibility to our shores that is law in Germany, where homeschooling is illegal to avoid creating “parallel societies” so as to preserve society.
again, the first and third sections are excellent, and exclusive of the second, would have to be utterly distorted and abused to allow the federal government to meddle in the rights of parents.
I believe strongly that the second section would be the activist judge’s playground, and given their propensity to look overseas for legal interpretations (which itself should be an impeachable offense), could very easily expand it, even as they continue to attempt to reinterpret and diminish the other rights recognized in the Constitution.
It is sad to see how the courts are laying waste to the 10th amendment. Perhaps the nullification and sovereignty declarations and amendment movements will help to check the federal government in its attempts to further consolidate powers that Constitutionally belong to the states and the people.
We are on the same side, we both want to protect the integrity of the family and the right of parents to train up their children according to the dictates of their conscience. I just wish that there was a way to rewrite that section so as to remove any ambiguity about the government’s interest in the child. A straight forward reading of that section as it stands just sounds Orwellian. The Constitution was written by learned men, but written so the public could understand it without special training or technical understanding. As public education is doing with the 1 and second amendments (transforming the prohibition of a “Church of America” like the church of England was into a near blanket ban of God and transforming an individual right to bear arms into a “collective right) so too would it do to the second article of the Parental Rights Amendment, in effect preparing the next generation to accept broad government controls over their children, again from a straight forward non-technical reading.
Thank you for the dialogue, I believe strongly in rational discussion and reasonable debate and appreciate that you’ve taken time to discuss this amendment and the concerns I’ve expressed.
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