Parental Rights Amendment

[Kathy E. Bessler]

The proposed Parental Rights Amendment will preserve the time-honored principles of parental rights in the actual text of the Constitution, just as the Bill of Rights preserves other fundamental rights.

Section One: The liberty of parents to direct the education and upbringing of their children is a fundamental

right.

Section one is rooted in several Supreme Court cases, and without exception:

• Meyer v. Nebraska (1923) – “It is the natural duty of the parent to give his children education suitable to their

station in life.”

• Pierce v. Society of Sisters (1925) – “The child is not the mere creature of the State; those who nurture him

and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for

additional obligations.”

• Prince v. Commonwealth of Massachusetts (1944) – “It is cardinal with us that the custody, care and nurture

of the child reside first in the parents, whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder.”

• Wisconsin v. Yoder (1972) – “The values of parental direction of the religious upbringing and education of

their children in their early and formative years have a high place in our society…. The primary role of the

parents in the upbringing of their children is now established beyond debate as an enduring American

tradition.”

• Moore v. East Cleveland (1977) – “Our decisions establish that the Constitution protects the sanctity of the

family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.

It is through the family that we inculcate and pass down many of our most cherished values, moral and

cultural.”

• Santosky v. Kramer (1982) – “The fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been model parents or

have lost temporary custody of their child to the State” (emphasis added).

• Washington v. Glucksburg (1997) – “In a long line of cases, we have held that, in addition to the specific

freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause in

cludes the rights…to direct the education and upbringing of one’s children.”

• Troxel v. Granville (2000) – “[T]he interest of parents in the care, custody, and control of their children is

perhaps the oldest of the fundamental liberty interests recognized by this Court….In light of this

extensive precedent, it cannot be doubted that the Due Process Clause of the Fourteenth Amendment

protects the fundamental right of parents to make decisions regarding the care, custody, and control of

their children.”

Fundamental Parental Rights

America’s Heritage

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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.

Section two is similarly established by the Supreme Court:

• Wisconsin v. Yoder (1972) – “[T]he 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” [i.e., a fundamental right].

• Quilloin v. Walcott (1978) – “We have little doubt that the Due Process Clause would be offended if a State

were to attempt to force the breakup of a natural family, over the objections of the parents and their

children, without some showing of unfitness and for the sole reason that to do so was thought to be in the

children’s best interest.”

• Parham v. J.R. (1979) – “[H]istorically, it has been recognized that the natural bonds of affection lead parents

to act in the best interests of their children…. The statist notion that governmental power should

supersede parental authority in all cases because some parents abuse and neglect children is repugnant

to American tradition.”

• Santosky v. Kramer (1982) – “Until the State proves parental unfitness, the child and his parents share a vital

interest in preventing erroneous termination of their natural relationship.”

• Washington v. Glucksburg (1997) – “The Fourteenth Amendment forbids the government to

infringe…’fundamental’ liberty interests of all, no matter what process is provided, unless the infringement

is narrowly tailored to serve a compelling state interest.”

• Gonzalez v. O Centro Espirito Benficiente Uniao do Vegetal (2006) – “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 [a fundamental right] is being substantially burdened.”

These sections simply restate the Supreme Court’s long-standing rules on the constitutional, fundamental

rights of parents.

Section Three: 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 three is designed to protect State family law from intrusive treaties and Customary International Law:

• Geofroy v. Riggs (1890) – “The treaty power, as expressed in the Constitution, is in terms unlimited except by

those restraints which are found in that instrument against the action of the government or its

departments, and those arising from the nature of the government itself and of that of the States.”

• Reid v. Covert (1957) – “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.”

It was not the intent of the writers of our Constitution that domestic law be passed under the treaty power.

Section Three of the proposed Parental Rights Amendment merely protects parents and the States from

unintended consequences arising from Article VI as it stands in today’s international world.

P.O. Box 1090 Purcellville, VA 20134 | [e-mail] | 540.751.1200

America’s Heritage, Cont’d.

The proposed Parental Rights Amendment will preserve the

time-honored principles of parental rights in the actual text of

the Constitution, just as the Bill of Rights preserves

other fundamental rights.

Do you agree with the Supreme Court’s traditional standard that parental rights

are a fundamental constitutional right?

Sections One and Two of the proposed Parental Rights Amendment do nothing more than place 80

years of Supreme Court precedent into the text of the Constitution.

Section One: “The liberty of parents to direct the education and upbringing of their children is

a fundamental right” is rooted in several Supreme Court cases – especially Meyer v.

Nebraska (1923), Pierce v. Society of Sisters (1925), and Troxel v. Granville (2000) – and is

without exception in precedent. (See attachment for quotes.)

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” is similarly established by the Supreme Court, especially in

Wisconsin v. Yoder (1972) and Gonzalez v. O Centro Espirito Benficiente Uniao do Vegetal

(2006). This language has been used in more than 120 federal cases to define the “strict

scrutiny” test required to limit a fundamental right. (See attachment.)

Do you agree that it is valid to put into the text of the Constitution those rights

that run the risk of being eroded in the near future?

This is exactly the reasoning and wisdom behind the inclusion of the Bill of Rights in 1791. Today,

parental rights are at risk as well.

Domestic concerns:

In Troxel v. Granville (2000), the Supreme Court issued a fragmented six-way decision in which

only Justice Thomas used the “strict scrutiny” test to reach his decision.

Justice Scalia held that because parental rights are ‘implied rights,’ they are not afforded judicial

protection at all.

In the wake of this confusion, lower courts routinely fail to accord to parental rights the same high

legal standard applied to other fundamental rights.

There exists the real possibility that the next parental rights case to reach the Supreme Court

could result in a decision even further removed from our heritage of protecting these liberties.

Preserving Liberty

...by protecting long-standing principles of Freedom

International concerns:

If ratified, the proposed UN Convention on the Rights of the Child (CRC) would override all state

law in the area of family law, based on Article VI of our Constitution (the Supremacy Clause).

Since nearly all U.S. family law is state law, this would constitute a massive power shift from

the state to the federal level, ultimately under the authority of a U.N. committee.

More importantly, the entire tradition of fundamental rights outlined above would be over-turned

for a system where government is obligated to interfere in any family decision in order to ensure

“the best interest of the child.”

‘Implied rights,’ such as those found to be implied in the Fourteenth Amendment, would not hold

up to a ratified treaty. (“The treaty power, as expressed in the Constitution, is in terms

unlimited except by those restraints which are found in that instrument against the action of

the government or its departments, and those arising from the nature of the government itself

and of that of the States.” – Geofroy v. Riggs (1890), emphasis added.)

Even if this treaty is defeated now, it or another like it can be brought up at any time for

ratification. Only Section Three of the proposed Amendment permanently removes this threat

to fundamental parental rights.

Many judges in federal and state courts already cite “customary international law” to justify

applying international standards to domestic cases. This allows our nation to be bound by the

CRC even if we don’t ratify it.

Section Three: “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,” addresses these

international concerns in the text of the Constitution, the only means of protecting State

sovereignty and parental rights from activist judges and an over-reaching use of the federal

treaty power.

Do you agree it will be wiser to protect parental rights in the early stages of

erosion than to wait until they’re “on the brink”?

We cannot afford to wait until parental rights are being violated on a wide scale before we

protect them. We must exercise the foresight of our forefathers by protecting these rights

and our sovereignty now!

“Liberty once lost is lost forever.”

-President John Adams

Preserving Liberty, Cont’d.

P.O. Box 1090 Purcellville, VA 20134 | [e-mail] | 540.751.1200