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Parental Rights Amendment (PRA)

A Civil Libertarian's Analysis


ParentalRights.org, a coalition made up of various conservative groups, has proposed a constitutional amendment to protect the rights of homeschooling families:

The liberty of parents to direct the upbringing and education of their children is a fundamental right.

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.

No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.
From a civil liberties perspective, the right of a parent to homeschool his or her children seems fairly basic. Compulsory education laws can be justified only on the basis that denying a child access to education constitutes neglect.

The trouble is that this constitutional amendment contains numerous "poison pills" that would prevent it from being supported by mainstream civil libertarians. Among the problems with it:
    Section 1
    • "Parents" is left undefined, creating the potential for problems in cases where a child is raised by grandparents or other relatives rather than biological parents.
    • "Upbringing" is left undefined, creating the potential that the amendment could be interpreted as protecting some forms of abuse, neglect, or exploitation.
    Section 2
    • The phrase "of the highest order" would have to be defined by the courts, reducing its usefulness. The existing compelling interest standard, governing federal restriction of free speech, would be more applicable.
    • The phrase "not otherwise served" is an oblique reference to the least restrictive means standard, also used in free speech cases. It would make more practical sense to actually use the phrase "least restrictive means" in order to avoid ambiguity.
    Section 3
    • This section is redundant if Section 2 is in effect, and would unnecessarily prevent the United States from entering into the U.N. Covenant on the Rights of the Child, which targets child labor, sex trafficking, and other forms of abuse, neglect, and exploitation.
Because the drafters of this amendment do not appear to be stupid people, it seems reasonable to surmise that these flaws are intentional "poison pills" written into the amendment specifically to prevent all but the most conservative legislators from supporting it, which virtually guarantees that it will never actually achieve the two-thirds congressional majority it would need for passage, much less ratification by three quarters of the states. This makes it highly effective as a rallying point--"elect more ultra-conservative legislators like us so we can pass the Parental Rights Amendment!"--but dooms it as a legislative item.

A more serious attempt at a Parental Rights Amendment would legally define "parents" and "upbringing," use existing constitutional standards, and allow the United States to enter into agreements that would protect the basic human rights of children overseas. If these changes were made, more moderate legislators would be willing to support the amendment and its odds of passage would increase considerably.

But this particular incarnation of the Parental Rights Amendment was written to fail, and that is exactly what it will do.
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