A Constitutional Amendment to Support Parental Rights?

A recent California home schooling decision has fueled new interest in amending the Constitution at both a state and federal level. For example, the Michigan Legislature has proposed Joint Resolution NN. This amendment would affirm that parents have a “fundamental right to direct the care, education, and upbringing of their children.” What is a “fundamental right?” What kind of protection does it offer parents in schooling their children? The proposed amendment tells us. A “fundamental” parental right can be burdened, abridged, or hindered by the state whenever the state can establish a compelling governmental interest. Clearly, a “fundamental” parent right is not much protection against the state legislature.

The “fundamental” rights movement is also alive and well at the federal level. The Home School Legal Defense Association (HSLDA) has been encouraging an amendment to the federal constitution by pushing “fundamental rights” language. The proposed amendment states that “liberty of parents to direct the upbringing and education of their children is a fundamental right.” Again, parents are given a “fundamental” right. But the federal amendment also empowers both the United States and every state government to infringe upon this “fundamental” parental right. If the government can demonstrate “that its governmental interest as applied to the person is of the highest order and not otherwise served” the parent’s fundamental right must yield. Again, a “fundamental” parental right is not much protection against an abusive Congress. Nor is education any business of the
United States. Protection of parental rights ought to be accomplished on a state to state basis.

Isn’t there something better than a weak “fundamental right” we can propose? Indeed, the obvious question is why go to all the trouble of amending the law to give the government any power to burden, abridge, hinder and infringe a parent’s right? It should be obvious that the Congress and state legislatures can always come up with some reason to burden, abridge, hinder and infringe the education of children by their parents. They will always argue that such burdens are “compelling” or are “of the highest order.” Do we really expect the courts to systematically find that the reasons advanced by Congress or a state legislature are not “compelling” or “of the highest order”?

So, why give the government any power at all over the mind of a child? We should rather be defending the unalienable right of parents, not confirming the power of Congress or any state legislature. Parents have the right to direct the education of their own child. This right is not “fundamental.” We have something better than fundamental rights. We have been given an unalienable right. It is unalienable because it is given to parents by God. It is not a privilege granted by the legislature or the people themselves through an amendment process. In the exercise of their natural and unalienable right, parents are free
 from Federal or State interference, regulation and control. While parents discharge their parental rights within these limits, they are, by the law of God, exempt from interference both from the individual and from society. If they exceed these limits, however, and go beyond education into physically harming their children, they are not exempt from civil punishment.

If a state constitutional amendment is desirable, why not propose one with which we can live? Let us only support an amendment that declares:

“Parents and legal guardians have a natural and unalienable right to direct the care, education, and upbringing of their children. No government action or interest, compelling or otherwise, shall burden, abridge, or hinder this natural and unalienable right.”

This is the Constitutional text we ought to demand our special interest lawyers and parental rights groups support."  Even if a constitutional amendment is not an option, let us at least ask our state legislative representatives and state senators to sponsor solid state legislation protecting parental rights.

Of course, they might not know exactly what language to propose so why not help them out?  Here is the text of a Model State parental rights law.  It is written for Michigan, but can be tweaked for use in any state by changes to relevant legal citations.

For information on how Thomas Jefferson and James Madison defended the natural and unalienable right of religious freedom against George Mason's proposal to only protect the right of religious toleration, and its relevance to the current unalienable rights versus fundamental right debate click here. Resolution_NN_Short.pdf