Every sensible person believes parental rights should receive the highest level of legal protection. But a few have questioned whether or not the Parental Rights and Responsibilities Act is an appropriate way to achieve this high level of protection. I'd like to share with you my responses to the two most commonly asked questions.
Why should the federal government get involved? Doesn't this violate the Tenth Amendment?
The federal government, under my view of the Constitution, has no implied powers, but only those powers which are expressly granted by some specific provision of the Constitution.
Family law, like education law, properly is a state issue (as opposed to a federal issue). The federal government has no more business regulating the details of family law than it does passing Goals 2000, School-to-Work, or any of its other unconstitutional forays into the field of education.
In the early 1920s, Oregon passed a law which banned private education. The federal Supreme Court intervened and, in effect, said to Oregon, "You may regulate education however you will, but you cannot regulate education in a manner which bans private education. Banning private education violates the rights of parents."
In March of 1996, Hawaii considered a bill which would have banned spanking.
If such a bill passed, no responsible conservative would argue that Hawaii's state rights should be allowed to trump the parental rights of Hawaiian parents. We would all support an effort to use the federal courts to argue that this law violated the federal Constitution in derogation of the federal constitutional rights of parents.
We must remember that Section 5 of the Fourteenth Amendment gives Congress the specific authority to pass laws to protect the rights guaranteed by that Amendment. It is well settled that parental rights are protected under the "liberty clause" of the Fourteenth Amendment.
Both Congress and the federal courts have the authority to protect our parental rights when states try to ban private schools or spanking.
The PRRA is a law which protects parental rights by limiting the power of government. It a law which is explicitly authorized by the clear language of the Fourteenth Amendment. It fits clearly into the most conservative constitutional thinking and principles.
Aren't parental rights God-given rights? Don't we give the government authority over these rights when we pass laws to protect these rights? Doesn't that end up diminishing our rights in the long run?
The entire flow of English and American history and law has made it abundantly clear that government will take away all rights of the people unless there are explicit, written limitations on the power of government.
The citizens of England demanded the Magna Charta because they knew their God-given rights were being denied in practice by the king. The only way to protect their rights was to get them down in black and white.
Some of the founding fathers tried to give all kinds of assurances to the people of this country that a Bill of Rights was not really necessary. After all, freedom of speech, freedom of religion, and freedom of the press were God-given rights and, it went without saying, the federal government could not violate those rights.
Other founding fathers said that those rights need to be explicitly protected. They looked at English history and declared, in effect, "implied rights are not safe-we need explicit protections."
In 1996, we need to look at recent American history of court cases, legislative decisions, and bureaucratic wars being waged against the family. Parental rights are implied, and they are God-given. But none of this stops government agencies from trampling on these rights time and time again.
It is time to explicitly recognize parental rights and to place them in our legal system at the very highest level of protection.
Like the founders who demanded the Bill of Rights, we need to say to big government, "Experience has shown that we cannot trust your protection of our inherent God-given rights. We want it in writing."
Those who oppose the PRRA on the theory that writing down rights denies those rights take the position of the English king who opposed the Magna Charta and those who argued against the Bill of Rights.
When I fight government abuses in court, I am certainly glad that some of the founders were wise enough to get a good number of protections in writing.
Ask yourself this question: When you are facing a government bureaucrat or judge who doesn't believe in your God-given rights, do you want your parental rights written down or not? The only way a parent has any hope of winning such a case is if he or she is able to thrust a binding law into the hand of the recalcitrant bureaucrat and say, "It's the law. You're simply wrong."
It is high time parental rights become explicitly recognized in the great tradition of the Magna Charta and the Bill of Rights.