As the primaries move forward and we think more and more about who our next president will be, Michel Smith of the Home School Legal Defense Association appears to be trying to re-invigorate support for the Parental Rights Amendment which would amend the US Constitution to explicitly protect the rights of parents to direct the upbringing and education of their children.
It’s possible that in the near future, the United States may significantly weaken the rights of parents to raise their children. Crucial decisions that parents are accustomed to making, such as what our children read, who they associate with, what kind of discipline is used, whether we take them to church, or whether we home-school, all become decisions for the state if the United States ratifies the U.N. Convention on the Rights of the Child (UNCRC). Washington Times
The UNCRC was signed by President Clinton, but has never come before the Senate for ratification. Particularly if Hillary Clinton wins the election, it is feared that the treaty will finally be ratified, becoming the law of the land. The solution, at least according to Michael Smith, is to sign the petition offered by ParentalRights.org. Coincidentally presided over by Michael Farris, the Chairman of HSLDA.
This issue is a difficult one for me, because I find within myself two opposing view points. I am leery of amendments. Regardless of their wording and intended purpose.
The original intent of the Constitution of the United States was to limit the power of the central government. The rights of the people were considered God-given and unalienable. We have drifted far from that vision, and some of our founders saw this inevitable slide even in the arguments for the inclusion of the Bill of Rights. The entirety of Federalist Number 84 by Alexander Hamilton makes for excellent reading on the topic, but the core of the concern is this:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were generated. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. Federalist 84
The Parental Rights Amendment acts as an exception to a power not given to the government to preside over. The central problem that the amendment attempts to redress is not a problem with the Constitution, but a problem with how we have come to view government.
A number of cases are cited by the organization which paint a pretty dire picture for the status of parental rights, at least at the hands of some judges. I do not know any details other than what is presented in the article on the website, but it seems to me that the core issue is not that parental rights are not spelled out clearly enough. It is that the judiciary has begun to stray from the basic concept of the Constitution as an inherently limiting document.
That will not be solved through an amendment. Look at what a New Jersey Superior Court did with the New Jersey homeschooling law. Thankfully, they had no power to mandate anything in their odd opinion, but it clearly demonstrates that law alone will not guarantee that judges rule according to it.
Then there is the issue brought up by Smith in his article: the UNCRC. I’ve talked about it before…before I even had any readers, it looks like. And my opinion is still pretty much the same, strengthened perhaps by the fact that a UN special rappateur recommended that Germany allow homeschooling under the supervision of the state.
But doesn’t it make more sense that to protect ourselves from this treaty, we should simply not sign it? If we can garner enough support in the House and Senate to pass an amendment to the Constitution, shouldn’t we be able to also stop the treaty?
But then, there is the pragmatic side of me. The side that realizes that our judiciary is what it is. And that it is probably difficult for a senator to vote against “the rights of children,” regardless of what the document actually contains. An amendment may not offer much protection, but it offers something.
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A Woman on Purpose shares some more thoughts on the possibility of a parental rights amendment. And I have a rare follow-up post, possibly to be ready tonight (1/22/08).
[tags]homeschool, homeschooling, CRC, UNCRC, UN, parental rights[/tags]
Principled Discovery is a place to stop and discuss news and information related to faith, family and particularly education. Pour yourself a cup of tea and join the conversation! 
I blogged about this a couple of days ago. I am also of two minds- why do we have to keep defining and delineating rights that should be considered sacrosanct? I personally think the Constitution is explicit enough- but we see evidence on a regular basis that rights not explicity outlined are fodder for those judges who are more like tyrant-wannabees.
Considering how many cases have come before courts (the 9th Circuit comes to mind) where parents’ rights were flat out dismissed, I think we may have to seriously consider an amendment.
As for the UNCRC, I think there is a very real danger that this treaty could be ratified under international pressure. An amendment would ‘clear the air’, IMO, and it seems easier to say “Yes” to something good than say “No” to something bad, KWIM?
I’ve the treaty in question several times trying to find what exactly in the treaty could justify the dire warnings from (almost exclusively) the HSLDA. I can’t find anything. In fact I’ve found wroding that directly contradicts some of the claims HSLDA likes to make about it.
Personally, I can’t help but wonder if the fuss with the UNCRC isn’t the point of all this but rather the parental rights amendment. I’m horrible…Suspicious of the HSLDA’s dominionist roots. So I wonder about it not in the context of the UNCRC but rather in what dominionist goal the parental rights amendment might further.
I should note that I’m in Canada, where the UNCRC has been ratified and homeschooling i my province is easier and freer than in many US states.
Dawn, I believe they hype it up a little too much…it makes it difficult when you read it because it isn’t as threatening as they make it out to be.
That said, I have a philosophical problem with giving power to an international organization to oversee relationships that I do not believe even belong with our federal government. The document is obviously targeted at Africa, Asia and where children truly are violated regularly, through child labor, the child sex trade and other practices offensive to our consciences. Things are not changing there, however. Instead, western nations who do not have such horrific track records are the ones being called on aspects.
Canada has ratified the convention, but not yet fully implemented it, so not everything will be felt.
I also found this interesting:
Canada has adopted a dualist approach to the incorporation of international conventional law, whereby the legislature must explicitly indicate its intention to give effect to these rules in Canadian law.
We don’t have that kind of freedom. Once ratified, a treaty becomes the law of the land. It is specifically in its ambiguity that I have the greatest concerns. The only thing a treaty cannot change is that which is outlined in our Constitution.
I’ll go over some of the specifics of the treaty later. But why can’t we all have the attitude of New Zealand?
Nothing in this Convention shall affect the right of the Government of New Zealand to continue to distinguish as it considers appropriate in its law and practices between persons according to the nature of their authority to be in New Zealand including but not limited to their entitlement to benefits and other protections described in the Convention, and the Government of New Zealand reserves the right to interpret and apply the Convention accordingly.
The Government of New Zealand considers that the rights of the child provides for in article 32 (1) are adequately protected by its existing law. It therefore reserves the right not ot legislate further or to take additional measures as may be envisaged in article 32 (2).
http://www.unhchr.ch/html/menu3/b/treaty15_asp.htm
Works for me, anyway.
Sorry, here is the reference for that first quote…it is in footnote 36:
http://www.canadiancrc.com/Chamberland_eng_Nov04.aspx
I don’t know much at all about Canadian law, but I remember reading a series of reports last year about how Canada had signed the treaty and not done anything to incorporate it.
Thanks for the info Dana! I’m off to do some reading!
I’ll take my usual big-picture role and interject the idea of comprehensive contitutional reform, which will require building readiness for it in our public consciousness, probably taking decades to do right (but hey, could that be a good way to abolish compulsory education while we’re at it?)
The conversation may seem far-fetched but so did ending “separate but equal” until the decades-long campaign to accomplish it succeeded. And it is underway already, for example with a new book by Larry Sabato, “A More Perfect Constitution: 23 Proposals to revitalize our sonstitution and make America a fairer country.”
It’s not any specific proposals though, as much as his suggested emphasis on the collaborative process of rethinking how best to put our principles into action, that I think is so important.
http://www.unicef.org/crc/ is a breakdown and explanation of the UNCRC- and on the surface, I would agree with many if not most points of it. BUT- existing laws cover the parts of it I agree with (you have the right not to be kidnapped- and can I say “Duh!”) but other parts of it, like
Article 41 (Respect for superior national standards): If the laws of a country provide better protection of children’s rights than the articles in this Convention, those laws should apply. and
Article 14 (Freedom of thought, conscience and religion): Children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights. Parents should help guide their children in these matters. The Convention respects the rights and duties of parents in providing religious and moral guidance to their children. Religious groups around the world have expressed support for the Convention, which indicates that it in no way prevents parents from bringing their children up within a religious tradition. At the same time, the Convention recognizes that as children mature and are able to form their own views, some may question certain religious practices or cultural traditions. The Convention supports children’s right to examine their beliefs, but it also states that their right to express their beliefs implies respect for the rights and freedoms of others.
Sounds nice- but who is going to interpret this- who is going to be applying these principles on a practical level?
So IMO we are still going to have the same problems of different authorities understanding these principles in different ways, and attempting to apply them to the population. Kiss the Amish “Good-bye!”
As much as I hate to say it, in the current social climate where many folks want to play the part of the infant on the doorstep of gov’t, I’d like it clearly stated that it is the sole responsibility of the parents to direct and determine their family dynamic unless they do something illegal or immoral- and for such acts there are already laws on the books.
One of the other issues with international treaties and US ratification is that it seems once the US has signed a treaty, it just sits there, waiting for a Congress that it willing to ratify it. If the Congress sitting when the treaty is signed won’t ratify it, the treaty is still there, four, ten even fifteen years later when a different Congress declares that it should now be ratified. And once it’s ratified, how would we ever get out?
With regard to Article 14: I heard Mike Farris speak on this issue last year. The examples he used were court cases in the US of teens (sometimes young teens, like 13-14) who didn’t want to attend church with their parents. Generally the courts came down on the side of the teen. I think that the way the article is written, any child who was able to announce that they didn’t agree with their parents, would by virtue of that announcement be considered mature enough under Article 14.
And as has been seen with the cases of German homeschoolers, a child (even an older teen) who expresses a desire that runs counter to the government’s will is clearly not mature enough to be considered.
I’m doubtful that the Parental Rights Amendment would pass. We’d see a repeat of what happened in California last year where Planned Parenthood spent millions to fund all kinds of completely misleading ads to scare voters into rejecting a parental notification bill for minors wanting an abortion. Can you imagine what PP and its allies would spend to kill an amendment that would allow parents control over whether their minor daughters could receive contraception as well as abortions?
I am leery of amendments to our constitution, but I am equally as leery of such emotionally charged positions as the one stated in the Times’s article. It comes across as a scare tactic rather than as something that needs to be considered and looked into.
I have rather wishy-washy feelings on this one. I am not sure that an amendment is the answer to the problem, but I rather loathe the U.N. and don’t want them in charge of any aspect of my life, much less my children’s. What’s a girl to do?
I agree with Dana. Fight ratification and hope for the best.
Hmmm. This is a tough one. I agree that there could be great international pressure for the U.S. to sign onto the UNCRC. And I think it would be a very dangerous thing, in the long run. But I believe a Parental Rights Amendment would be viewed with a lot of suspicion, given how deep our country is into a Government-dependent state. Fighting the U.N. would be better received in the current political climate, I think.
Jennifer, it is continually pointed out that we are one of two nations that didn’t ratify. Somalia, who lacked a government, is the second. So we’re kinda standing alone on this one. But that isn’t such a bad thing. : )
I’ll share more later…I just popped on to print something off for school.
I’m scared by a commenter at Dawn Eden’s place, who has an 11-year-old daughter and wants minors to have access to contraception without parental consent. I don’t get this desire to toss out parental rights at all. I would be afraid if enough of these parents ever got a majority in this country.
Barb,
I hear you. A school board in my state wants to give 11 year olds contraceptives.
Here’s a link to an article about it:
http://www.americanhomeschoolassociation.org/blogs/HS-PSatHome/?p=135
Now, let’s put this together with all the convictions of teachers molesting students, and they want these students to go to “their” inhouse clinic and not notify the parents? Sounds like it might be a conflict of interest–not to mention ILLEGAL when the authorities are never notified when students turn up pregnant.
I think the whole idea of the UN is icky. We need to get out of that and make our own laws for our own people. Countries can use diplomacy without such an organization.
But I will say that such a treaty, if ratified and implemented, would be horrible for all parents. Most parents aren’t perfect but are doing the best they can for their children. Even the ones I disagree with who let their 4-year-olds watch unlimited tv and go out without a helmet! (It’s none of my business until their kid trespasses on my property on mulitple occasions or lets the dogs loose, you know.)
I don’t see much blogging, etc. on this and I’m glad to have come across this post.
Oh, I meant bike riding without a helmet, not just walking outdoors. I’m not *that* overprotective of my children, you know! LOL!
No one should jump to any conclusions without reading the whole case for the amendment. Go to the Learn section of the http://www.parentalrights.org.
Several points of clarification:
- The UNCRC has been signed. The Senate has not yet ratified it. A new campaign is starting to get Senate ratification. We should expect to see it brought up in the next Congress after the elections.
- Regardless of whether it is signed and ratified, judges are beginning to look to it as if we’ve signed it. Check out the Customary International Law section of the ParentalRights.org site.
- If you’ve read the treaty and think it looks fine and you’ve read what UNICEF has written on it you don’t have a complete view of it. If you want to do the research yourself you should look at how it is being enforced in other nations. Things that are happening specifically under the UNCRC: Europe is working to ban spanking (http://www.coe.int/t/commissioner/Viewpoints/080121_en.asp), a teen girl ran away from home in New Zealand and the police knew where she was but wouldn’t tell the parents because of her “right to privacy under the UNCRC.” Another thing you can do is look at the recommendations from the UN to the member states on how they can better live up to the UNCRC.
- If you understand the current parental rights doctrine of the Supreme Court you’ll understand in a plain reading of the UNCRC that “Best Interst of the Child” is the test it will lean on. That right there is the key to all that is considered bad about the UNCRC. Do you have a opinions about child-rearing that are different than other people’s opinions? How would you like to be accused of abuse or neglect and then you being the one that has to prove your innocence instead of that burden resting on the state. The United States has a long tradition of innocence until guilt is proven. Leaving that standard causes a lot of problems but more importantly it undermines the child-parent relationship. Government shouldn’t undermine that relationship.
Rich, I understand all of that. I read all of the case posted on the parentalrights.org. I read all of the CRC and have posted nothing but criticism of it.
My point is not that any of this is good. It is summarized in these two sentences:
The central problem that the amendment attempts to redress is not a problem with the Constitution, but a problem with how we have come to view government.
and
…the core issue is not that parental rights are not spelled out clearly enough. It is that the judiciary has begun to stray from the basic concept of the Constitution as an inherently limiting document.
How well do you think a parental rights amendment really will protect us as the judiciary continues on this path? It is a temporary fix, at best.
When an international court can take something like this:
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
And turn it into this:
The second sentence must be read together with the first…respect is only due to convictions on the part of the parents which do not conflict with the right of the child to education. This means that parents may not refuse the right to education of a child on the basis of their convictions.
with this for clarification,
The right to education by its very nature calls for regulation by the State.
it will only be the matter of a few more rounds of judicial appointments before whatever amendment passed is viewed the same as the rest of the “living document” that is our Constitution.
These decisions will become a model for our judges under the passage of the CRC, and I don’t know that an amendment will offer much protection.
And as I said in the entry,
But then, there is the pragmatic side of me. The side that realizes that our judiciary is what it is. And that it is probably difficult for a senator to vote against “the rights of children,” regardless of what the document actually contains. An amendment may not offer much protection, but it offers something.
I stumbled upon your oasis of intelligent thought via Google semantic warp and was immediately drawn to your discourse on the need for a parental rights amendment. As I reside in the neighbouring virtual orb of family rights movement (FRM) and family law reform which is the primary battleground for parental rights, I found it most interesting to see parental rights being discussed in a non-divorce context as it provides a different perspective on the overall issue.
If you will, please allow me to cross-pollinate your discussion with thoughts for consideration with no pretence of intellectual correctness. Allow me therefore to posit that the central issue comes down to the legal doctrine of parens patriae, literally translated as parent of the state. Originally formulated by James I as a basis for the state to intercede with decision-making authority on behalf of imbeciles incapable of acting in their own behalf, the doctrine was soon extended to state wardship of orphans. The doctrine remained fairly static until the second part of the 20th century when the unilateral (a.k.a. “no-fault” )divorce revolution saw progressive state regulation of family affairs by progressively extending the legal harm doctrine beyond physical to psychological and social considerations as part of “best interests” considerations.
Without getting into philosophical or political preferences, historical parens patriae constraints to protect the sanctity of the family unit and parental rights have been eroded by the modern presumption of justifiable state interference in family affairs.
I submit that the issue of parental rights amendment ultimately comes down to framing the public-private boundary of parens patriae which exists in all national jurisdictions deriving from English common law. No public debate has been held on state encroachment into parens patriae rights antedating any and all Constitutions and guaranteed under common law. As one might expect, there are vested interests that discourage this debate- but that’s a separate discussion.
What I am suggesting is that a parental rights amendment is a proposed “means” to what is is ultimately the parens patriae “end”, and an amendment to what arguably exists as an unceded right may be a redundant course of action. By extension, discussions of Bill of Rights or Charter of Rights (I happen to live in Canada) only serve to disguise the underlying common law issue grandfathered into Rights documents in all Common Law countries.
With that, I leave you with references should you wish to pursue this train of thought.
http://en.wikipedia.org/wiki/Parens_patriae
http://www.familyrightsassociation.com/bin/white_papers-articles/parental_rights_and_due_process.htm
http://www.kentlaw.edu/7cr/v3-1/richard.pdf
Cheers…George