Constitutional-Literacy-20

=**Section 20: Parental Rights**=

John Locke was an influential philosopher and used scripture as a key component of his reasoning concerning principles of government and had a lot to say about parental rights. Many today think the founding generation believed the father ruled with an iron fist, but that wasn't truly the case. He taught that the duties and rights of parents were co-equal writing "she hath an equal title." He specifically rejected the notion that fathers have absolute, arbitrary dominion over the child. He said government plays no role in raising children and says "this is a duty for both parents to act consistently with the bonds of love and trust imposed upon them by God." These principles influenced the Founding Fathers, who never dreamed the government would get so big that it would regulate behavior and choices of parents. They thought the government should merely protect life, liberty, and property. Socialist nations need loyalty to the state first and therefore control parental rights. Did Locke's theory make it into the Constitution? Not specifically, but the 9th amendment says rights not mentioned are retained by the people.


 * Comprehension Question: Are parental rights specifically enumerated in the Constitution at this time?**


 * Discussion Question: Do you agree or disagree with Locke's theory? Why or why not?**

There have been court cases that have dealt with parental rights. In Troxel v. Granville 2000 the Supreme Court ruled, but there was no clear majority opinion since the court split six different ways. Overall, parents have constitutional rights. First, let's examine history to see what happened leading up to the 2000 case.
 * In Meyer v. Nebraska 1923 a state law prohibited teaching a foreign language to a grade school (up to 9th grade) child. A teacher taught Bible stories in German in a Lutheran school and was arrested. The Supreme Court ruled that the state law was unconstitutional. The question dealt with what was liberty. "Without a doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized by common law as essential to the orderly pursuit of happiness by free men." The Supreme Court rejected the Statist views that the child was the product of the state.
 * Three years later, a case in Oregon came up in which a broad political coalition (included the KKK) supported a ballot initiative that banned all private schools in that state. Support was fueled by anti-Catholic bigotry. Advocates (those who favored the initiative) said all students needed to be taught the same education from public schools. In Pierce v. Society of Sisters, the Supreme Court ruled against such a law saying “The fundamental theory of liberty upon which all governments in this union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. 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.” The Oregon law was unconstitutional.
 * In Wisconsin v. Yoder 1927 Amish parents were allowed to remove their children from public schools after the 8th grade. The Amish give training with much success from there on out.


 * Comprehension Question: How has the Supreme Court ruled on parental rights in past cases?**


 * Comprehension Question: If the Supreme Court ruled the opposite in Pierce v. Society of Sisters and would have allowed a state to ban private schools, how would this hurt parental rights today in terms of parents choosing how best to educate their child? What other types of schooling could various states ban?**

A closer look at Troxel brings up a key question. Does the Supreme Court treat parental rights as a fundamental right (fundamental rights are the higher level of rights in the Constitution)? It was a challenge to state law to allow any person to petition the court for visitation to a child without parental permission. The grandparents of a child wanted visitation rights while the mother wanted the visits limited - the father had committed suicide. The Supreme Court ruled that the law was unconstitutional without proving child abuse. This was a big ruling for parental rights.

There was no majority opinion in the Troxel case. Justices O'Connor, Rehnquist, Ginsburg, and Breyer voted together but didn't apply the normal test used to protect a fundamental right. They simply said parental visitation cases should be a case by case basis. Souter said parental rights are unclear but generally protected, but he avoided treating parental rights as a fundamental right. Clarence Thomas was the only justice to rule that parental rights were fundamental.

Justice Stephens, one of the most liberal judges the past years, dissented from the majority saying parental rights could be overturned at any time the government thought appropriate. If this were the majority, then this would give the government unlimited power to control children. Justice Kennedy also dissented refusing to label parental rights as fundamental. Justice Scalia, who is considered very conservative, also dissented saying he supports parental rights and cited the Declaration of Independence calling parental rights "unalienable rights" and that the 9th amendment also guaranteed parental rights, but also said he can't say the Constitution protects rights that are unenumerated based on his views.


 * Comprehension Question: In the Troxell case, how was Clarence Thomas the only justice who truly ruled for parental rights even though others did rule how Thomas did in the 6-3 decision?**

Many in America believe that 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." Also rights retained by the people from the 9th 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.

The composition of the Supreme Court has changed since Troxel. John Roberts replaced Rehnquist and their opinions would probably stay the same although he might have joined Scalia. Samuel Alito replaced O'Connor and has usually sided with Scalia on cases. Elaina Kagan has replaced Stephens and both are very liberal and both would vote against parental rights. Sonya Sotomayor replaced Souter (who did vote in favor of parental rights, but refused to recognize them as a fundamental right) wouldn't rule better than Souter for parental rights and would possible dissent. Basically, the current Supreme Court can't be counted on to protect parental rights.

Since Troxel, other courts have followed the ruling by not seeing parental rights as a fundamental right. "Parents have an important, but limited substantive due process right in the care and custody of their children." - Missouri District Court. Similar language was used in a Virginia District Court.

How can parental rights be protected? Amending the Constitution is what it would take. There has been an amendment written. The Constitution gives implied rights for parents, but implied rights give judges too much leeway - imagine if the right to bear arms was an implied right like parental rights. Below is the text from the proposed parental rights amendment. [|Click here] to view the page devoted to this proposal
 * SECTION 1: The liberty of parents to direct the upbringing, education, and care of their children is a fundamental right.
 * SECTION 2: Neither the United States nor any state shall infringe this right without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.
 * SECTION 3: This article shall not be construed to apply to a parental action or decision that would end life.
 * SECTION 4: 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.


 * Discussion Question: Do you think we should have a constitutional amendment for parental rights? Why or why not?**

**Overall: Summarize the main idea of this section and why it's important.**

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