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

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.

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.

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.

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.