The Home School Court Report
Vol. XXVI
No. 3
Cover
May/June
2010

In This Issue

SPECIALFEATURES
REGULARCOLUMNS
ANDTHEREST

Cover Story Next Page
by HSLDA Chairman Michael Farris
- disclaimer -
Parental Rights--God Grants Them. Governments Secure Them.

Any good idea will attract opponents. Homeschoolers should be the first to recognize this truth. There are those who say that we are denying our children the opportunity for the inculcation of liberal multiculturalism that is necessary for the best interests of the children’s future. A law professor at Emory University recently proposed that all private education and homeschooling should be banned for this very reason.

Parental rights are God-given
iStockphoto.com
...
WE HOLD THESE TRUTHS
TO BE SELF-EVIDENT...
...

There are also Christian critics of homeschooling. They argue that Christians have a duty to be the salt and light of the world and that by withdrawing from the public schools we are failing in this duty.

Experienced homeschoolers have developed answers to both “liberal” and “conservative” critics of home education.

The Parental Rights Amendment (PRA) has also attracted liberal and conservative critics. In this article, I will address a couple of the more common arguments that have arisen from conservative critics of the PRA.

The chief argument is that because parental rights are God-given and inalienable, it is unnecessary or even dangerous for us to attempt to protect these rights in the Constitution of the United States. Government does not create rights, nor do we need government to even recognize our rights, critics assert.

Like most fallacies, this argument contains a mixture of truth and error. It is obvious that anything that is a universal right comes from God. If men create a right, men can take it away. But it is error to say that it is unnecessary or dangerous for government to recognize or protect our God-given rights.

Let me prove this to you.

You are arrested for homeschooling your child. The claim is that all teaching must be done by certified teachers. You rise to your defense and tell the judge that you have a God-given right and duty to raise and educate your child. You add that the Bible clearly directs parents to teach their own children the necessary means for raising godly children. You ask the judge to dismiss the case in light of these rights.

Everything you said to the judge was sound theology. But, you have just asked the government to recognize your rights by asking the judge to dismiss the case. You may assert that you are not under the jurisdiction of the government regarding the raising of your children, but you are standing in the courtroom under compulsion with an armed guard there to prevent your escape. Depending on the judge’s decision of whether or not to protect your right to homeschool, you will either go free or go to jail. But make no mistake, it will be the government that decides which path you will take.

The Founding Fathers secured our rights.
Comstock.com
...
BY CREATING THE
BILL OF RIGHTS...
THEY SECURED THESE
RIGHTS, WHICH NOW
MUST BE RECOGNIZED
BY GOVERNMENT.
...

An equivalent scene was repeated innumerable times in the early days of homeschooling. Families were in court and thus under the jurisdiction of government. Their beliefs about God requiring them to homeschool were being evaluated and ruled upon by government judges.

To maintain our freedom and to secure the actual protection of our God-given rights, it is essential for judges (and other agencies of government) to respect, acknowledge, and protect our rights.

The Founding Fathers clearly agreed: the Declaration of Independence unmistakably sets forth these very principles.

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. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. [emphasis added]

The Founders made it clear. Rights come from God. But the very reason that we have government is to ensure that these God-given rights are secured.

God grants rights. Governments have a duty to acknowledge, protect, and secure those rights.

But why is the Constitution the best place to secure these rights?

The answer to this question comes from a principle that I teach on the first day of every one of my constitutional law courses. The purpose of a constitution is to grant power to government and to limit the power of the government. A private person can never violate the Constitution. Only the government can violate the Constitution.

To understand the nature of a constitution we need to return to a historical perspective. How did the Constitution become binding law in this country? Was it an act of the government? Or was it an act of the people?

The Congress (which was governed by the Articles of Confederation) accepted the recommendation of the Annapolis Convention—an independent meeting called by the states—and convened a meeting in Philadelphia to draft improvements to the Articles. The meeting (now called the Constitutional Convention) had only one power: to make a recommendation back to Congress. The convention sent Congress its proposed Constitution with a recommendation that the document be ratified by conventions chosen by the people of each state. To implement this recommendation, both Congress and all the state legislatures had to sign off on the methodology. They all did. The conventions were called. Campaigns were mounted. The people elected the delegates.

...
Supreme Court Justice ScaliaDESPITE HIS BELIEF
THAT PARENTAL RIGHTS ARE
INALIENABLE, SCALIA SAID
THAT AS A JUDGE, HE COULD
NOT VOTE TO UPHOLD PARENTAL
RIGHTS BECAUSE THEY ARE
NOT IN THE TEXT OF THE
CONSTITUTION.
...

The state ratification conventions were not government institutions—they were special meetings of the direct representatives of the people. It was these meetings and these meetings alone that gave the Constitution its legal and moral authority. So when the Constitution says that “We the People” are the authors, it is speaking literal truth.

“We the People” granted power to government in that document. And we limited the power of government in that same document.

All amendments to the Constitution—including the Bill of Rights—have been made by elected officials. But they were wearing a different hat—that is, they were using a different power—than ordinary legislative power. They were picking up the mantle of “We the People” as they created further restrictions on the power of government.

The first phrase of the First Amendment sets the tone: “Congress shall make no law ... ” The government did not create the freedom of speech, press, religion, or assembly or the right to petition, in the act of writing the First Amendment. Our elected officials were using their constitutional power (“We the People” power)—which they can only use when there are two-thirds majorities in both houses of Congress followed by three-fourths of the state legislatures—when they proposed the Bill of Rights.

By creating the Bill of Rights, our elected officials were fulfilling the mandate of the Declaration of Independence. They created no rights. But they secured these rights, which now must be recognized by government.

Those who argue that the Parental Rights Amendment is inconsistent with the idea that our rights as parents are God-given and inalienable are simply wrong. Our right to worship God is God-given and inalienable, and yet the First Amendment has enacted a guarantee that government must respect this right. There is utterly no difference between the protection of religious rights in the First Amendment and the protection of parental rights in the Parental Rights Amendment. Both are legitimate acts of “We the People” to ensure that all branches of government respect our rights.

A second, related criticism often follows at this point. Why is the term fundamental rights used in the PRA rather than the term inalienable rights? “Fundamental rights” is a term recently invented by the Supreme Court and is not from the era of the Founding Fathers.

One critic framed the argument this way: “To use the term fundamental introduces new language that is already understood as a civil or government-granted right.”

The historical record is to the contrary. The anti-federalists, who effectively campaigned against the Constitution because of its lack of a bill of rights, employed the term fundamental rights to describe what was missing from our Constitution.

For example, in Letters from a Federal Farmer No. 16, dated January 20, 1788, and generally thought to have been written by Richard Henry Lee, there is a recurring use of the term fundamental rights in its argument for the necessity of a bill of rights.

The trial by jury in criminal as well as in civil causes, has long been considered as one of our fundamental rights, and has been repeatedly recognized and confirmed by most of the state conventions. But the constitution expressly establishes this trial in criminal, and wholly omits it in civil causes.

The “Farmer” belittles the position that all rights are protected under the assumption of their inalienability with no need to enumerate them in a bill of rights. He points out that the Constitution protects the right of habeas corpus, which he describes as a “fundamental right.” When one “fundamental right” is listed, how then can we claim that all other such rights will be protected by constitutional silence?

The “Farmer” describes the general collection of the rights of the people as “fundamental rights.” He goes on to say:

All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever. Why should not the people, in adopting a federal constitution, declare this, even if there are only doubts about it.

The plain historical facts are that the people who won the political argument over the necessity of the Bill of Rights were the anti-federalists. These parties argued that it was error to include some fundamental rights like habeas corpus, while leaving out other fundamental rights like freedom of the press. It was because of these very arguments that we have the First Amendment, which guarantees the freedom of the press.

In 1786, James Madison wrote a petition to the General Assembly of Virginia protesting a bill that gave special authority to the clergy of the Anglican Church. One of his points of opposition to the legislation was

Because the law constitutes the Clergy members of a convention who are to legislate for their laity contrary to their fundamental right of chusing their own legislators.1

It is absolutely clear that the Founders used the term fundamental right concerning the freedom of the press, the right to trial by jury, and the right to self-government. Any claim that they believed that fundamental rights were merely “civil or government-granted rights” is not historically correct.

The historical pedigree of the term fundamental right is unassailable.2

Even in Supreme Court decisions, which repeatedly employ the term fundamental rights to describe all of our First Amendment liberties, there is not so much as a whisper regarding the idea that fundamental rights are of the variety that the government may give or take away at its legislative or executive whim. The overwhelming view is that fundamental rights may not be taken away by government. Yes, it is true that fundamental rights are not absolute. To state an extreme example, one may not exercise one’s freedom of religion to perform human sacrifice. But the right itself is beyond the power of government to eradicate entirely. A civil rights law, such as a so-called gay rights statute, could be repealed entirely. This would simply not be true of a fundamental right.

I am not saying that Supreme Court doctrine is perfect—far from it. But even in this imperfect arena, it is simply false to say that the term fundamental right is of recent origin, or that the term describes a species of right that may be eliminated by government whim.

There is only one current justice on the Supreme Court who believes that parental rights are inalienable. But, there’s a catch. Read what Justice Scalia says about parental rights in Troxel v. Granville.

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men ... are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.

It is imperative that we understand what Scalia is saying. Judges cannot grant you protection for your inalienable rights if those rights are not specifically recognized by the Constitution. In Troxel, the State of Washington intervened in a mom’s life and ordered her to allow her child’s paternal grandparents (the child’s father was deceased) to have regular visitation with the child. The government (a government judge, to be specific) made the decision about the care and control of this child. And Justice Scalia voted to affirm this action by government. Despite his belief that parental rights are inalienable, Scalia said that as a judge, he could not vote to uphold parental rights because they are not in the text of the Constitution. He voted against the parents and for the government.

Conservative theorists who disagree with a parental rights amendment (I know no lawyers who have actually litigated constitutional claims for parental rights who are among these theorists) tell you that you should prevail because your rights are inalienable. Justice Scalia says otherwise. Who are you going to believe when you are the one facing the judge and your children are in legal peril through the actions of the state? Who is the judge going to listen to—some theorist or Justice Scalia?

We stand with the greatest American traditions when we insist that our elected officials use their “We the People” power to secure parental rights so that government agencies like courts must properly recognize and respect our rights.

The Parental Rights Amendment grants no power to government. It restricts the power of all governments—federal, state, and local. All governments will be required to respect, honor, and secure the fundamental rights of parents if this amendment is adopted.

Endnotes

1 John Frederick Wilson et al., Church and State in American History (Boulder, CO: Westview Press, 2003), 70.

2 For example, Algernon Sydney in his Discourses on Government No. 36 (1698) described the right of self-government as a “fundamental right”; the ratification of the U.S. Constitution by the State of South Carolina (May 23, 1789) employs the term fundamental right; the dissenters from the ratification of the Constitution in Pennsylvania also used the term fundamental right with respect to the right to elect our representatives in “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents,” Pennsylvania Packet and Daily Advertiser (December 18, 1787).