Parental Rights are Important but a Constitutional Amendment is Unnecessary
Washington, DC, July 19, 2012
Yesterday, the Subcommittee on the Constitution held a hearing on “H.J. Res. 110, an Amendment to the Constitution Concerning Parental Rights and Education.” In numerous cases, the Supreme Court has long recognized the relationship between parent and child as a fundamental right. H.J. Res. 110 would not provide any additional protections or recognition not already afforded to this important bond by the Supreme Court. Ranking Member John Conyers, Jr. (D-Mich.) released this statement in response to the hearing.
“While I know that some of my colleagues on the other side are not fans of unenumerated rights, and are certainly not fans of the line of cases establishing the liberty interest under the Due Process Clause that also gave us Roe v. Wade, I believe that the desire to preserve parental rights cuts across ideological and party lines. But, I think it is important that we keep a few important points in mind.
“First, as the Supreme Court famously noted in Pierce v. Society of Sisters, ‘[t]he fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children . . . 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.’ In its decision in Meyer v. Nebraska, the Court’s instructive survey of societies such as ancient Sparta, where children were raised as creatures of the state shows why, if only as a practical matter, ceding that kind of power to the government is undesirable.
“More importantly, the bonds of family, and the importance of the family in our society, demand that we respect the family relationship. The Court’s nearly 90-year jurisprudence reflects these widely held views, and I believe that there is no reason to question that sound rule.
“Second, I know that there are some who have sounded the alarm that parental rights are under attack from our courts, and from the international community. That is unfortunate. While the stray case, or occasional dicta, may sound ominous, I do not believe the case has been made that parental rights, as protected by the Constitution, are in peril.
“Finally, there is also a great deal of fear that has been generated by concerns that ratification of the United Nations Convention on the Rights of the Child might nullify parental rights. I have to confess, we hear such arguments with respect to nearly every treaty, and they usually have no firmer foundation than this one.
“Most organizations that work with families, such as World Vision, believe that the treaty will actually do a great deal to support families and protect children. That is why, according to a World Vision report on the Convention, ‘World Vision does not view the Covention on the Rights of the Child as a parental code of conduct or as a wedge between parents and children. It is an agreement that aims to protect children from abuse and neglect, and is supportive of the role and authority of parents.’
“The Supreme Court has said that while treaties ‘may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.’ It would take an act of Congress, which is always subject to our Constitution, to implement these obligations.
“I find it sad that the only two countries left on earth that have not yet ratified the Convention on the Rights of the Child are the United States and Somalia.
“I would, as always, caution my colleagues against pressing forward with a constitutional amendment. As Professor Guggenheim stated in his prepared testimony, ‘To tinker with the Constitution when there is no genuine crisis or even a serious problem, would be an extraordinary act that could lead to unpredictable mischief in the coming years.’ There is a reason why we have amended that document so rarely, and why the framers made it so difficult to amend. It should certainly not be amended lightly, and in a case such as this, where a right is already well established under the Constitution, and where the threats are truly speculative, I would have grave reservations about moving forward.”