Bulletin #58    Germany, the UN, and a U.S. Constitutional Amendment                           02/20/07

 

 

Did you know?  German homeschoolers have been having legal troubles with the German government over education issues.  Recently a 15 year old child was taken away from her homeschooling family by a SWAT team and brought to a psychiatric ward to be examined for her “school phobia”. She was held there for one week. As of 02/15/07 the girl has been moved from the psychiatric institution where she was first held to an “undisclosed location”, and not even her parents or their attorney knows where the girl is being held now.

 

NHELD decries and denounces the actions of the German government in taking the child away from her family, placing her into a psychiatric unit, and then absconding with her to who knows where.  It amounts to nothing more than government sponsored child abduction.  Some homeschoolers in America are very concerned about the international law that is prompting Germany to act in the manner that they have, and have taken the initiative to create an amendment to the US Constitution to try to prevent that from happening here. We disagree that an amendment to the United States Constitution is warranted.

 

NHELD believes adamantly in the right of parents to instruct their children at home as they see fit without government interference.  NHELD sincerely hopes that the people of Germany will rise up against their government and be successful in repealing any laws that interfere with this parental right. We truly hope that the child can return to her family safe and sound.  We know that the legal battles there will be difficult and heart wrenching.

 

NHELD strongly believes that the United Nations and international law are potential threats to the sovereignty of the United States.  If our Congress, and our President, both act to adopt laws that cede our sovereign authority to international authorities, they will be acting unconstitutionally and in derogation of their oath of office to protect and defend the United States Constitution.  NHELD hopes that all Americans will work feverishly to urge Congress and the President not to cede authority to international authorities and to repeal all laws that currently do cede such authority.  NHELD hopes that all Americans will work feverishly to become informed about exactly who, how, and why our government officials are acting in derogation of their responsibilities now and to help stop it.

 

The answer for homeschoolers in America right now is not a Constitutional Amendment.

That’s because our Constitution already limits the authority of the federal government.  The Constitution does not grant authority of the federal government to do anything about the education of children by their parents, as long as those parents are not receiving any federal money or benefits. That’s because the federal government cannot directly regulate education.  It is not a power granted by the Constitution to the federal government.  It is a power that is retained by the states and the people.  The federal government can only regulate education by its spending power.  That is, it adopts laws that provide money to states if the states will adopt a law that mirrors the federal law.  It is an indirect regulation. States that do not accept the money do not have to abide by any federal education law.  States need to step in and assert their rights.  They haven’t done so because they are unwilling to give up the funding. It seems they have some very hard choices to make. Freedom usually involves making those hard choices.

 

Parents who homeschool, do not receive any federal money to do so.  Therefore, they are not subject to any federal education law purporting to regulate homeschooling.  Any federal law that purports to regulate or define homeschooling is unconstitutional.  Only the states may regulate or define homeschooling. Our Congressional delegates seem to be forgetting this.  We need to remind them, because they are not only forgetting it for this purpose, they are also ceding states’ rights in other areas such as drivers’ licenses as in the case of the Real ID Act 2005. 

 

The wording of the constitutional amendment proposed by HSLDA is as follows:

DRAFT TEXT

Section 1. The God-given right of parents to direct the upbringing and education of their children is a fundamental right which may not be abridged by the United States or any state.

Section 2. The balancing test applicable to other fundamental rights may be used to balance a claim of parental rights provided that the government establishes its interest by proper evidence in each case.

The drafters of this constitutional amendment are very much concerned about how the European Court of Human Rights “interpreted” Germany’s constitution.  They were quoted as saying:

 

“Most recently, a decision was handed down by the European Court of Human Rights (which)…completely turned the European Union Constitution’s Article 14, the section on parent’s rights to control the education of their children, completely upside down.”  World Net Daily article:  February 3, 2007 - http://www.wnd.com/news/article.asp?ARTICLE_ID=54082

 

If the facts in that statement are accurate, it would seem that a “court” construed the “constitution” of Germany to mean something that it didn’t actually say. 

 

Courts in this country do the same thing all the time! 

For example:

 

Is it constitutional, pursuant to the first amendment’s freedom of speech provisions, for a judge to tell one parent that he or she cannot tell the children that it is wrong for the other parent to practice his faith, or for the other parent to be gay, or for the one parent to say bad things about the other parent? 

 

That happens every day in family court.

 

Is it constitutional, pursuant to the first amendment’s freedom of religion provisions, for a judge to tell one parent he can’t take a child to the church of his choice because the other parent doesn’t want him to do so?

 

Is it constitutional for a judge to tell one parent he can’t take the child out of state if the other parent doesn’t want him to do it? 

 

Is it constitutional for a judge to tell both parents that they can’t try to cure their child’s ailment in the manner in which they choose?

 

The founders likely would say of course these things are not constitutional.  Yet, American judges make these decisions all the time. 

 

Why, then, should we march forward and put language in our Constitution that a court could construe against us? 

 

The likelihood of judges saying a law is unconstitutional, when they subjectively want it to be constitutional, is very small indeed. 

 

The point is:  The courts interpret the Constitution routinely in ways that the founders never imagined or intended. All too often those interpretations do not favor the right of individual parents to direct the upbringing of the child unfettered by government interference.

 

The Constitution doesn’t even grant to the judiciary the power to “interpret” the laws, nonetheless, in the 1800’s in a case called Marbury v. Madison, the judiciary took it upon itself to declare it had that power.  It has been using that power ever since that time.

 

Are there cases in which the courts have upheld the right of parents to direct the upbringing of their child?  Undoubtedly, yes.  The most well-known of those cases are Meyer v. Nebraska, 262 U.S. 390, Wisconsin v. Yoder, 406 U.S. 205, and Pierce v Society of Sisters, 268 U.S. 510. 

 

In Meyer, the court held that the liberty protected by the due process clause of the fourteenth amendment to the Constitution includes the right “to acquire useful knowledge, to marry, establish a home and bring up children” and the right to a private school that offers specialized training – in that case, instruction in the German language.

 

In Pierce, the court applied Meyer to hold unconstitutional an Oregon law requiring the parent having custody of a child between eight and sixteen years of age to send that child to public school on pain of criminal liability. The court said that the statute in that case “interfered with the liberty of parents…to direct the upbringing and education of children under their control.”

 

In Yoder, the court emphasized the “limited scope” of Pierce.  The court stressed that Pierce lent “no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society.”  The court said that Pierce “held simply that while a State may posit [educational] standards, it may not preempt the educational process by requiring children to attend public schools.”

 

In fact, the Supreme Court repeatedly has said that parents have no constitutional right to provide their children with education “unfettered by reasonable government regulation.” 

In Pierce, the court expressly acknowledged “the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils.” So while they have said that parents have a federal constitutional right to provide for the upbringing and education of their children,  they have also said that it is not an unlimited right, rather the court has said that the state (not the federal government) can regulate that right.

 

Courts use three standards of review to “interpret” the Constitution:  (1) strict scrutiny; (2) middle level review; and (3) mere rationality.

 

The hardest standard to satisfy is the strict scrutiny standard.  It will be satisfied only if the governmental act satisfies two stringent requirements.  First, the government must have a “compelling” objective in adopting the law in question.  Second, the means chosen by the government must be “necessary” to achieve that compelling end such that there is no less restrictive means that would accomplish the government’s objective.

 

Under middle level review, the governmental objective has to be “important” and the means chosen to implement it must be “substantially related” to the important government objective.

 

The easiest standard to satisfy is “mere rationality”.  When a court applies this standard, it will uphold the government action as long as the government is pursuing a “legitimate governmental objective” and there is “minimally rational relation” between the means chosen by the government and the objective. 

 

Strict scrutiny review is used when a governmental action affects fundamental rights and the person affected claims that his substantive due process rights are being violated.

 

Traditionally, there have been two general classes of rights that are deemed by the courts to be “fundamental”. They are those rights that are independently and explicitly guaranteed by a constitutional provision, and those rights that are not independently and explicitly guaranteed by a constitutional provision but are deemed to be “important” and “implicitly” granted by the constitution.  As you can see, in the second category, in order a court must subjectively assume that these rights are constitutionally guaranteed, even though the framers never expressly included them in the constitution.

 

Given this context, take a look at the proposed Constitutional Amendment promoted by HSLDA. 

 

The draft text of that proposed amendment reads:

 

“Section 1.  The God-given right of parents to direct the upbringing and education of their children is a fundamental right which may not be abridged by the United States or any state.”

 

Section 2.  The balancing test applicable to other fundamental rights may be used to balance a claim of parental rights provided that the government establishes its interest by proper evidence in each case.” 

 

Let’s take the first section.  At first glance, it sounds wonderful.  From the beginning of time, parents have had the natural duty and responsibility, or God-given right, to raise and instruct their children.  To specifically limit the federal and state governments from interfering with that right would be ideal.

 

The drafters of this proposal are not unaware of the history of the Supreme Court in interpreting the rights of parents.  Notice that the language in the first section actually quotes the language in Pierce, i.e., “to direct the upbringing and education of their children.” 

 

Notice also, that the drafters are calling the right of parents a “fundamental” right independently and explicitly guaranteed by the constitution.

 

Section 2 of the proposal, addresses the standard of review that a court must use in “interpreting” this section of what the drafters hope to be part of the constitution.  Section 2 directs the court to use the “balancing test applicable to other fundamental rights”.  Although it is not specifically stated, one can assume that the drafters are directing the courts to use the “strict scrutiny” test. 

 

In essence, then, the amendment drafters of this proposal recognize this constitutional provision will not prevent the federal or state government from enacting laws that curtail the rights of parents.  The drafters recognize that when those laws are enacted, and when the issue is brought to a court, the court, necessarily, will “interpret” this constitutional provision. 

 

What the drafters are trying to do is to tell the courts what standard of review to use when they do “interpret” this provision and the laws the government enacts. They are telling the courts to use the “strict scrutiny” test, hoping that the courts will overturn any laws enacted unless the government has a “compelling” objective in enacting those laws and uses a means that is necessary to accomplish that objective.

 

While NHELD abhors any action by those in power to allow the United Nations or any international entity to install its authority above our United States Constitution, NHELD does not believe that the way to stop that encroachment on parental rights is by a constitutional amendment. 

 

Reading the Constitution as it is written, the Constitution grants to the federal government limited, enumerated powers.  The Tenth Amendment to the Constitution specifies that all powers not so specifically enumerated as granted to the federal government, remain powers of the people and of the states.

 

Education is not an enumerated power granted to the federal government.

The ability to regulate the rights of parents is not an enumerated power granted to the federal government.

Those are powers that remain powers of the people and of the states.

 

Making the “rights of parents” fundamental rights in the U.S. Constitution raises those rights to the federal level.   The federal government then is better able to assume a power to regulate those rights.  The Supreme Court already has “interpreted” the right of parents to direct the upbringing and education of their children as something that can be regulated by government. Up until now, however, the courts have said that it is up to the States to regulate that right.   With a constitutional amendment, the road is cleared for the courts to say that the federal government also has the right to regulate.

 

It is far easier to affect legislation on a state and local level than it is to affect legislation on the federal level.  Some states even have elected judges so that if the state courts interpret a state regulation in a manner opposed by the people, the people can elect new judges that may “interpret” the regulations differently.  Federal judges are appointed, and they are appointed for life.

 

Yes, we, as parents and as Americans, are facing a battle.  Yes, we must fight that battle.  Let’s fight the battle where we can be most effective. Let’s keep the power in the states.  Let’s encourage each of our legislators to uphold the Constitution as it is.  Let’s educate our government officials and our neighbors about how all of our rights are threatened by the United Nations and international law. Let’s encourage our legislators to appoint federal judges who will not use international law as a basis to decide any court cases.  Let’s educate Congress that we will not tolerate anyone disregarding their oath of office to protect and defend the Constitution.  Let’s not give the federal government any more ammunition to wrest power from the people. Let’s work to inform other parents about these issues, and embolden them to stop Congress, and the President, from abusing their power whenever they fail to protect and to defend the Constitution.

 

For reference:

World Net Daily article:  February 3, 2007

http://www.wnd.com/news/article.asp?ARTICLE_ID=54082 and February 7, 2007

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=54135 )

 

 

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense. – www.nheld.com or email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net