The "Parental Rights Amendment"--Or, the Parental Interests Amendment

As www.parentalrights.org shows, a small group of senators and representatives are supporting what they call a “Parental Rights Amendment” to the U.S. Constitution. Here are the provisions of the proposed amendment:

1. Parents have a fundamental right to direct their children’s upbringing, care, and education.
2. Parents have the right to choose from public, private, and religious schools or to choose to school their children at home.
3. Infringement on these rights is allowable only when the highest levels of government interest are involved.
4. This does not extend to the right to make a decision or action that would end a child’s life.
5. No treaty or international law may be construed to modify these provisions.

The basic concerns here seem to be in favor of parental choices of health and medical care (but not parental decisions to terminate pregnancy or to withhold treatment from a severely compromised newborn). Another concern--  apparently secondary, but possibly not so—is to continue to prevent the U.S. from ratifying the United Nations Convention on Children’s Rights and the United Nations Convention on the Rights of Persons with Disabilities. (Efforts to avoid ratification of the UNCCR have been successful for almost 30 years now, so chances are that www.parentalrights.org will continue to be happy about this.)

Arguments in favor of institutionalizing parental rights often focus on errors of child protective services staff who have “taken away” children inappropriately. There is no question that these problems occur with alarming frequency (see for example http://childmyths.blogspot.com/2013/08/when-attachment-therapists-dont.html).

However, it would be a great mistake to imagine that these errors are more frequent than erroneously failing to take custody of a child when the child is in real danger. The Barahona case in Florida was an egregious example of this, involving the common problem that caseworkers liked and thought well of parents and therefore did not even bother to contact the endangered children (http://childmyths.blogspot.com/2011/07/adoption-trust-compacency-and-barahona.html). A recent case was that of Timothy Jones of South Carolina, who is accused of killing his five children and driving with their bodies to Alabama (Blinder, New York Times, Sept 12, 2014; A18. According to the Times, Jones had been investigated in May and August 2014, following reports that one son had “extensive bruising”. The August investigation report spoke of Jones as “overwhelmed” by caring for the five children, ages 1 to 8 years, on his own following a divorce. Interviews with the children suggested that he depended on physical punishment as discipline, having the children do push-ups and beating them with a belt, and that he used rough horseplay. The May investigation concluded that there was not enough evidence for an arrest. (There had been earlier investigations of the conditions of the family home while Jones’ wife was still living there.)  

Advocates of a Parental Rights Amendment seem to be concerned only with errors of child protective services staff that lead to mistakenly taking the child into custody. The errors that leave children in the custody of parents who later injure or kill them are not mentioned. (To be fair, the website does state that prevention of abuse or neglect by governmental agencies would be continued under the amendment, because such prevention is a governmental interest of the highest order. However, it is unclear what parental actions would be included as neglectful or abusive under the amendment.)

For some decades now, U.S. courts have made decisions about child custody on the basis of the ill-defined term “the best interest of the child”. I refer to this term here for one reason only: its very existence indicates our awareness that the best interest of a child may not be the same as the best interest of a parent, and neither may be the same as the best interest of the state. All these interests may overlap to a greater or lesser extent, but they are not necessarily identical. This point is made even more  clear by the fact that the advocates of a Parental Rights Amendment have as a major concern the rejection of the Convention on the Rights of Children. They want priority given to the interests of parents which do not necessarily overlap with the interests of their children. (Because the concept of a “right”, fundamental or absolute, is difficult to define, I would suggest that we speak of parents’ and children’s interests, not their rights. This terminology may help us avoid the influence of the “natural law” system and focus on the outcome we desire.)

Modern democratic government is based on acceptance of the fact that different groups (and government itself) have different interests, and the principle that balancing the interests of different groups is the best way to assure survival of the entire community. Because interests of parents and children may not be identical, and because children are not competent to make use of civil rights and therefore possess them in a limited way only, the best interest of the government and community is in the protection of children from a range of dangers, including those that may unfortunately arise from their caregivers. To prioritize parental rights through a constitutional amendment would be to interfere with both children’s interests and those of the larger community as a whole.  Think about the amendment as a Parental Interests Amendment and I think you’ll see what I mean.

I don’t believe proponents of the Parental Rights (or Interests) Amendment are concerned about the outcome of balancing interests that I mentioned in the last paragraph. On the contrary, their motives are ideological rather than pragmatic. Exploration of the www.parentalrights.org site shows the influence of charismatic Christian leaders, for whom the establishment of correct lines of authority is an overriding goal. Legal arguments provided by parentalrights.org come from the law school of Regent University, a Christian school founded by the charismatic Pat Robertson. To put parents firmly in charge, and to avoid the “ungodly” influences of the United Nations (a concern of fundamentalists for many years now)--  these are goals that exist because of religious and political beliefs about authority, not because their outcomes are held to have value for the community.