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Attorney Deborah G. Stevenson, Executive Director



Bulletin #64     No Constitutional Amendment    02/03/09



Did you know?  Certain organizations are promoting passage of a Constitutional Amendment purporting to protect the rights of parents.  NHELD opposes such a Constitutional Amendment for a variety of reasons.


Here is what the draft states:




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 nor any source of international law may be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.


People are asking, “Do we need this Constitutional Amendment to protect the right of parents?” 

The answer is No.


Why not? 


Parents already have an unalienable right to direct the upbringing and education of their children. 


The Constitution does not grant rights to the people.  It establishes a government designed to secure the rights that the people already have.  The Constitution defines the structure of our government, grants certain powers from the people to the government, and places limits on certain powers granted to the government.  These principles were cited in the Constitution itself, in the Ninth and Tenth Amendments.


The Ninth, and the Tenth Amendment, are among the most important of the Amendments.  Just in case there was any doubt about what the framers intended in the rest of the Constitution, the framers clarified for all time their intent in these two Amendments. 


The Ninth Amendment states,


“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 


The Ninth Amendment says that while the framers may have enumerated certain rights in the Constitution, the mere listing of those rights shall not be construed somehow to mean that the people do not retain other rights, and shall not be construed somehow to deny the people any of the other rights that they already retain.


The Tenth Amendment states,


“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”


 Just to make absolutely sure there was no misunderstanding, the framers added this Amendment.  It clearly indicates that the framers, in fact, in the Constitution were delegating certain powers to the new government of the United States.  It also clearly indicates that while the people did delegate some powers to the United States government, all of the other powers not mentioned in the Constitution, in no uncertain terms, are “reserved to the States respectively, or to the people.”  In other words, the people have certain unalienable rights. The people granted to the United States government certain powers concerning their rights, and the people may have delegated certain powers concerning those rights to the government of the States. Therefore, those powers that the people did not specifically, in this Constitution, grant to the United States government, remain powers either already granted by the people to the State government, or are being retained by the people.   This explains the framework, intent, and meaning of all of the provisions of the Constitution.


In other words, precisely because the Constitution does not contain reference to the rights of parents, those rights are retained by the people.  They are reserved to the States respectively, or to the people.


The Constitution does not grant any power to the federal government to interfere in any way with those rights in any way.


According to the Ninth and Tenth Amendment then, any power concerning the rights of parents and children are reserved to the States respectively or to the people.


That means that right now, according to the Constitution, the United States government has absolutely no authority to say or do anything about the rights of parents and children.  Those rights are unalienable and are retained by the people.  The people may have granted certain of their power concerning the already existing rights of parents and children, however, to the States. 


The people in most states, through their elected officials in the state legislatures, have granted to the State government the power to regulate both the education and the upbringing of the children.  They have done so by adopting state laws regulating such things as education, homeschooling, neglect of children and abuse of children.


Because the people have granted this power to the States, the States have utilized this power.  An individual parent objecting to the use of the State’s power against that parent may choose to fight the use of that power by objecting in court.  In that case, the people of that State have granted to the State the power to make a judicial ruling as to the outcome of the dispute between the State and the parents.  If the parents do not agree with that judicial decision, they may appeal it until they have exhausted the appellate court system. Often, the courts will rule in favor of the State against the parents.  This probably has fueled interest in the desire to adopt a Constitutional Amendment, however, a Constitutional Amendment does not guarantee that a judge will rule in favor of a parent.


That’s because judges have taken it upon themselves to claim the right to “interpret” the Constitution and the laws of the land. Even though the language in the Constitution may be crystal clear to any intelligent reader, nonetheless, a court may choose to “interpret” the language in any way that it chooses, despite the existence of so-called “rules of construction.” 


Adding new language to the Constitution alluding in any way to the rights of parents gives unelected officials, politically appointed to our courts, all across the country the opportunity to “interpret” the meaning of the language contained in that new Constitutional amendment.  Given the recent proclivity of the courts, particularly the Supreme Court, to lawmaking through judicial activism, and, more importantly, the court’s penchant to rely not just on United States law, but on international law, a judicial “interpretation” of such a Constitutional amendment could lead to the opposite outcome than what is desired by any Constitutional amendment.


It is a real possibility that the language in a new Constitutional amendment might be “construed” as granting a heretofore, unrecognized power to the federal government to become involved in parental rights issues. After all, the courts have found many so-called “rights” in the “penumbra” or shadows of language of currently existing Constitutional provisions.  There is no telling what would lurk in the shadows of the language of a Constitutional provision regarding the rights of parents.


In fact, the United States Supreme Court already has found rights of parents to be lurking in the shadows of the Constitution.  In several cases, it has determined that parents have a fundamental liberty interest in the upbringing and education of their children by virtue of the due process clause of the fourteenth amendment, an amendment that says nothing about parents. 


In Troxel v. Granville, 530 U.S. 57 (2000) , the Supreme Court explained,


“More than [seventy-five] years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 [43 S.Ct. 625, 67 L.Ed.1042] (1923), we held that the liberty protected by the [d]ue [p]rocess [c]lause includes the right of parents to establish a home and bring up children and to control the education of their own. Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, [534-35, 45 S.Ct. 751, 69 L.Ed.1070] (1925), we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control. . . . We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 [64 S.Ct. 438, 88 L.Ed.645] (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal . . . that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Id." Troxel v. Granville, 530 U.S. 57 (2000)


However, in each of those cases, the Supreme Court also found that the State may regulate the fundamental rights of parents.


In fact, because the Supreme Court found the rights of parents to be fundamental, the regulations placed on the rights of parents, when reviewed by a court, are deemed lawful only when passing a “strict scrutiny” test.  That is, they are deemed lawful if the court finds that the state has a “compelling interest” in adopting those regulations.


In other words, without even having one word cited in the Constitution, our judicial system has “found” that parents have a “Constitutional right” to the upbringing and education of their children, but that right may be interfered with by the State as long as the State has a good enough reason for doing so.


The courts needed no language in the Constitution to make those findings.


What will the court find when it does have language in the Constitution to “interpret”?


Will the “findings” and “interpretations” depend on who the justices are and who appointed them?  Probably.


Will the “findings” and “interpretations” depend also on what law the justices look to for “assistance” in interpreting that language?  More than likely.


Will the final arbiter of an “interpretation” of a provision in the United States Constitution be made ultimately by the United States Supreme Court?  Definitely.


If the Constitution, by its express language in the Ninth and Tenth Amendment, already states that the rights not specified in the Constitution as delegated to the federal government remain the rights of the States and the people, will the final arbiter of a dispute about the rights of parents necessarily be the United States Supreme Court?  Absolutely not.  


The final arbiter of the rights of parents is the State Supreme Court. 


More importantly, by the express language of the Constitution, the rights of parents, if they are to be interfered with, may be interfered with only by the State government.  By its interpretations in previous decisions, the United States Supreme Court has affirmed this. 


Therefore, if parents already have an existing right to the upbringing and education of their children, that may be interfered with only by the State government, then parents can have the most affect on retaining their rights unfettered by government interference by educating those in their state’s legislature to reduce or eliminate State regulations.


Not only is it far easier to affect change in regulation at the State level, but it is what the Constitution already provides. 


Parents already have unalienable rights.  While the State may have certain rights as well, parents already have the power to reduce and eliminate any interference with those rights.


If a Constitutional Amendment is enacted, the power of parents to affect reduction and elimination of interference with those rights is substantially weakened when power to “interpret” that Constitutional provision is given to a handful of justices politically appointed for life sitting on the United States Supreme Court.


NHELD supports the power of “we the people” at the state level as it currently exists, rather than ceding even more power to the hands of a few at the federal level.  Our Constitution should remain as is.




Attorney Deborah Stevenson - Executive Director of National Home Education Legal or email :

Judy Aron - Director of Research, NHELD –