Further Thoughts on the Parental Rights Amendment


November 28, 2017
Attorney Deborah G. Stevenson
Founder, National Home Education Legal Defense, LLC.

I am very glad to see that so many people are seriously contemplating the ramifications of a proposed Parental Rights Amendment to the U.S. Constitution.  As some may be new to the idea, and to the discussion, some background may be helpful.

The Parental Rights Amendment first was proposed many years ago, as the brainchild of Michael Farris of HSLDA, and which HSLDA, through ParentalRights.org still strongly supports.

HSLDA and NHELD both believe in the protection of parental rights.  We differ in one very important way. NHELD believes in adherence to the existing Constitution, which does not grant any rights or powers to the federal government concerning parents and children.  HSLDA believes in changing the existing Constitution in order to grant to the federal government new powers and rights concerning parents and children.

NHELD has been straightforward in advocating for its position, explaining the Constitutional basis for it, and the potential negative consequences of a Parental Rights Amendment.  HSLDA has not adequately refuted NHELD’s position in prior years, or in its latest response.

To explain as simply as possible NHELD’s position, we offer the following.

The U.S. Constitution is a document that limits the authority of the federal government.
It is not a document that grants rights to individuals.
It is a document that restricts the federal government’s authority to interfere with the rights that States and individuals already have.

Individuals already have rights, that are so obvious, and that no one can take away, not because NHELD says so, but because that’s what our Declaration of Independence says.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.”

In fact, the Declaration of Independence, not the Constitution, actually is our original founding document.  All else flows from that Declaration, the first and foremost point being that we already have rights.  This marked a huge change in the history of government, because before the Declaration emphatically stated differently, it was accepted that governing kings granted rights to individuals.  In this country, we declared our freedom from that concept, informing the entire world that, here, the people already have rights that no one can take away.

The second point articulated in the Declaration of Independence, also extremely novel in history, was that the people, already having unalienable rights, need to protect those rights from any who sought to take them away. Therefore, it was declared that in order to protect those rights, the people had the right and power to set up their own form of government, a government that was specifically designed to ensure that the rights of the people would be protected from any infringement.

“That to secure these rights, Governments are formed among Men, deriving their just powers from the consent of the governed.”

In fact, the Declaration emphasized the power of the people in forming that government to secure their rights by declaring that, at any time when the government did not function to protect those rights, the people could abolish that government and establish a new one.

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government.”

These are the fundamental principles of our nation.

After the Declaration, and after the Revolutionary War, the founders abolished the then existing form of government, the Articles of Confederation, and instituted a new government to secure their already existing rights.  That new government was described in the U.S. Constitution.

Keep in mind, that at the time, the people already were governing themselves in the thirteen colonies.  The people in each colony formed their own government.  The people in each colony wanted very much not to lose the rights and powers that they had when the new federal government was being established.  The issue of how much power the federal government was going to have, and how much power the colonies, now States, and individuals would have was debated fiercely before the Constitution was ratified.

The delegates approved the Constitution, but the States didn’t want to ratify it unless amendments to it were made.

There was so much clamor about this issue that the framers of the Constitution took to writing essays about the reasons why each part of the Constitution was necessary, and why, or why not, the rights of the States and the people were protected from infringement by the government.  Those essays are what are known as the Federalist papers and the Anti-Federalist papers.  For two years, these issues were debated. During those two years, certain amendments to the Constitution were proposed.  Those first ten amendments are what are known as the Bill of Rights.  Finally, after those two long years, the States ratified them.

It is important to note, however, that in proposing ratification of those first ten amendments to the Constitution, Congress particularly noted their importance in a preamble to the Bill of Rights. In that Preamble, Congress recognized the concerns of the people and the States that the terms of the Constitution might be misconstrued or abused, and that the rights of the people and the States would be infringed. By inserting the Preamble, Congress was informing everyone that by adopting the Bill of Rights, the already existing rights of the people and the States would not be infringed because it was clear that the federal government was restricted.  The Preamble to the Bill of Rights says,

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added:  And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

The most important of those ten amendments, that were added specifically to prevent the misconstruction or abuse of the powers of the federal government, were the Ninth and Tenth Amendments.

The Ninth Amendment says,

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

In other words, the Constitution, itself, spells out only very specifically “enumerated” rights that the people give to the federal government. The federal government is restricted to exercising authority only based on those enumerated rights granted to the federal government.  The Ninth Amendment basically emphasizes this fact, and further explains that even though certain enumerated rights were given by the people to the federal government, the Constitution shall not be construed to claim that other of the rights retained by the people can be denied or disparaged.  The federal government cannot take away the rights of the people that they already retain.

The Tenth Amendment says,

“The powers not delegated to the United 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 Tenth Amendment talks about the powers that were specifically enumerated and granted to the federal government, as opposed to any rights that were granted.  This Amendment is meant to make sure that the federal government understands, and is restricted by, the fact that any powers that were not specifically enumerated and granted to the federal government, are powers that are specifically retained and reserved as powers already held by the people and by the States, except for a few powers that the Constitution denies as powers of the States.

Having provided this background, it becomes clear why NHELD takes the position that it does.

NHELD is simply stating, and advocating for, adherence to the founding principles as articulated in the Declaration of Independence and in the Ninth and Tenth Amendments.

That is, we believe that the federal government already is restricted by the specifically enumerated rights and powers granted to the federal government, and all other rights and powers are retained by the people and by the States.

Right now, and since its inception, the people did not grant any specifically enumerated rights or powers to the federal government concerning parents or children.  Those rights and powers, therefore, by the plain language of the Constitution, are retained already by the people and by the States.

NHELD believes that the federal government has no right or power over parents and children right now, and should not have any such right or power in the future.

HSLDA, on the other hand, is proposing an amendment to the Constitution, that would grant specifically enumerated rights and powers to the federal government.

That, NHELD believes, is a huge mistake.

Specifically, Section 3 of the latest version of the Parental Rights Amendment does just that.  It says, ?
“Neither the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.”

While that may sound helpful to parents, at first glance, in reality it is not. Read the important parts again.  It says, “Neither the UNITED STATES..shall infringe these rights WITHOUT DEMONSTRATING THAT ITS GOVERNMENTAL INTEREST as applied to the person is OF THE HIGHEST ORDER.”  Logic dictates that the United States, i.e., the federal government, is allowed to infringe these rights, and, in fact, has a governmental interest in infringing on them, under certain circumstances.  Obviously, this is stating that the federal government may infringe on the rights of parents when the federal government has an interest of the highest order.

Not only does the Parental Rights Amendment grant to the federal government a new right or power that it never had before, but it does so in a way that grants to the federal government an interest of the highest order.  Equally as important, the amendment does not define what that “highest order” or that “interest” is.

Many questions are raised by this. For starters:  Who will determine what the federal government’s interest is?  Who will determine what an infringement is?  How will the federal government demonstrate it has a governmental interest of the highest order?
In our system of government, the United States Congress adopts laws that are consistent with the Constitution, or at least should be consistent with it.  So, logically, Congress would adopt laws to define what the federal government’s interest is, what an infringement is, and how it may demonstrate its interest is of the highest order.

Here are some more questions: What will be contained in those laws?  Who will implement them?  How will they be enforced?

Congress may adopt laws that may contain some things parents may like, but also may contain other things that parents won’t like.  The answer to the question, who will implement those laws and enforce them, however, is the most frightening.  Who always implements and enforces a federal law?  A federal agency does.  Which federal agency might implement and enforce laws concerning the rights of parents and children?  If there are none that fit the bill existing now, there may very well be a new federal agency created to do that.  Those agencies already exist in the States to implement and enforce laws affecting the rights of parents and children.  They are called the Department of Children and Families, or Child Protective Services.  Is it really that farfetched to contemplate that once a Parental Rights Amendment is adopted, granting to the federal government rights or powers over parents and children, that Congress will not adopt a new federal Child Protective Services agency?

Again, the real question is, how will the Parental Rights Amendment, and laws implementing it, really benefit parents and children?

How will the rights of parents and children, which already exist and already are not given, in any way, to the federal government by the Constitution, be “protected” by the Parental Rights Amendment?

More importantly, if HSLDA and the leaders of ParentalRights.org, are well informed Constitutional scholars, why do they consistently leave out the extremely important facts concerning the Ninth and Tenth Amendments from any analysis or explanation of their reasons for proposing the Amendment?

Why don’t they mention the Ninth and Tenth Amendments at all?

Why don’t they acknowledge that a new federal Child Protective Services agency may very well be created?

Why don’t they stand up for the already existing rights of parents under our existing Constitution?

Why should parents support the adoption of the Parental Rights Amendment?

Don’t take anyone’s word for what the Constitution says or doesn’t say.  Read the Declaration of Independence.  Read the Constitution, Read the Preamble to the Bill of Rights and the Ninth and Tenth Amendments.  Read the Federalist and Anti-Federalist papers.

Then make up your own mind about how best to protect the rights we all already have.

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