Thursday, July 16, 2009

The Right Way to Amend the Constitution, part 4

PARENTAL PRIMACY


This is part four of an ongoing series of articles containing proposals for amendments to the Constitution. For someone who claims so fervently to be a “Constitutionalist”, how is it that I can be so eager to change the Constitution? Well, there are several reasons. For one thing, I believe that after the Bill of Rights, much damage was done by some of the amendments that were added and the legitimacy of some of their ratifications are questionable. Secondly, the Constitution has been violated so much that the necessity of further amendments is needed to resolve the resulting problems. But this should be done extremely cautiously. These amendments are extremely unlikely to ever be introduced, much less ratified, but hey, I can dream, can’t I?

Before I get to this week’s proposed amendment, I want to point a correction to something that I had written (in regards to who should decide who is a U.S. citizen) last week. "Without the 14th, the states would have the legal right to decide that question, which is a much more appealing idea to me." This is not true, the Constitution does charge Congress with the duty "To establish an uniform Rule of Naturalization" in Article I section 8. I have made the appropriate correction in the text of that post.

Here is my fourth proposed amendment (subject to revision):

Section 1: The liberty of parents to direct the up bringing and education of their children is a fundamental right. The United States shall not infringe upon this right.

Section 2: No portion of this Constitution or of any law of the United States shall be construed as a limitation of authority or responsibility that parents have over their children. Neither shall any treaty, international law, nor executive order be employed to supersede, modify, interpret, or apply to this authority.

Section 3: The thirteenth article of amendment of this Constitution, if rendered inoperable by a subsequent amendment, shall be again operable upon ratification of this amendment.

Commentary on this proposed amendment:

As I mentioned in the last post of this series, a parental rights amendment is needed not only because of the U.N. Convention On The Rights Of The Child, but because of flaws in our own Constitution. It’s possible that the Founders took parental rights as a given, and did not even dream of the day that we would have to worry about governments intruding on them. It is clear that in these cases, the authors of some later amendments did not intend these intrusions. Sometimes the courts recognize intent when interpreting the Constitution, but sometimes they don’t. It’s best, as much as possible, not to leave this for them to decide.

The 13th prohibits involuntary servitude. A straightforward interpretation of this amendment, without any regard for the Bible or God-given rights, would lead one to believe that parents are constitutionally prohibited from requiring their children to do chores. This is a perfect example why one must be very careful in amending the constitution—it can lead to an inadvertent usurpation of authority by government.

Similarly, the 14th amendment forbids States from denying “equal protection under the law” to any person within its jurisdiction. This would mean that all laws must equally apply to all people. So you couldn’t have, for example, statutory rape laws. If a parent sent a child to his room, this would be like sending a complete stranger to his room (kidnapping). It just isn’t a well thought out piece of legislation.

Even the 2nd amendment needs tempering with a parental rights amendment. Notice it doesn’t say that “the United States and the Several States” are prohibited from infringing on the keep and right to bear arms. It just says it “shall not be infringed”. But obviously parents should have the right to decide when or if their child should be allowed to have a gun and if so, what type, and to require supervision, etc. Notice that, unlike other parental rights amendments, my amendment forbids a limitation on parental responsibility by the Federal government. Thus, an irresponsible parent, leaving his or her child unsupervised with a loaded gun, would not be immune from prosecution (by his or her State) on the basis of the 2nd amendment.

There is a joint resolution in the Congress (H.J. Res. 42/ S.J. Res. 16) to introduce a parental rights amendment which you can read about at parentalrights.org. But it is much weaker than mine. They are trying to do too much with this amendment by restricting the States with the same language as Federal and multinational government. Their proposed amendment contains this exception:

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.

This exception is so vaguely worded that the courts would take it to mean anything (so long as it’s in THEIR interest). Obviously, local government should intervene in cases of child abuse. That is obviously the primary reason for the exception. These cases are difficult to define and shouldn’t be left up to bureaucrats in Washington or federal courts to decide. That is why I only limit Federal and international authority in my version. It is easier to get rid of a local judge who makes a bad decision on a child abuse case than it is a federal judge or an international tribunal.

I do, however, applaud the intentions of the authors, the sponsors, and the cosponsors of H.J. Res. 42/ S.J. Res. 16. It did call this issue to my attention and served as a starting point for the development of my own amendment.

To continue reading this series, click here.

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