The right to raise our own children is an essential element of personal liberty–for parents, and moreover for their children. The legal doctrine called “the best interests of the child” is a euphemistic government excuse for invading this area of private life. I have seen first hand as a court appointed investigator of child abuse and neglect how this doctrine is used to perpetually keep children and families under the thumb of the state. However, up until now the impact of the doctrine has been held partially in check because courts recognize an implicit personal right for parents to raise their own children.

That is about to change. The United States has signed, but not yet ratified, a treaty called the United Nations Convention on the Rights of the Child (CRC). When this treaty comes into force it will preempt American case law that has so far protected the parent-child relationship at least from the most outrageous government intrusions. This is not some remote possibility. It is the practical reality based on existing U.S. law and the nature of treaties.

According to Article VI of the U.S. Constitution all federal and state judges must adhere to the supreme law of the land. This supreme law is comprised of: the Constitution itself, laws enacted by Congress (statutes), and treaties. In 1888 the Supreme Court ruled in Whitney v. Robinson that a treaty is on par with a federal statute. This precedent is still binding. If a self-executing provision of a treaty and a federal law conflict the more recent one prevails.

The CRC’s self-executing provisions will overturn many American laws that have been worked out over history to carefully balance the liberties of children and parents against the need to intervene when children face actual, serious, unjustified harm that cannot be prevented any other way. Ratification of the CRC’s other provisions will essentially create a new enumerated power for Congress. This will authorize unprecedented federal intrusion into family life. Here is some of the substance of the CRC:

• The government can override any parental decision: Article 3, section 1
• A child is entitled to a hearing on nearly any disagreement with a parent: Article 12, section 1
• Parents may not interfere with a child’s legally enforceable right to play and leisure: Article 31, section 1
• The CRC supports a national ban on corporal punishment, including reasonable spanking: Committee on the Rights of the Child, General Comment No. 8

Unfortunately there is a political element in the United States that reads the foregoing list with solemn approval. They are entitled to that opinion. Indeed they are entitled to persuade, cajole, protest, and complain until enough Americans agree and their view becomes law. The problem with ratification of the CRC is that it will make a sweeping end run around that domestic political process.

At the time the Constitution was written international law did not touch upon day-to-day life. It was concerned chiefly with war, peace, diplomacy, trade, and the high seas. The CRC does not address true foreign policy issues. It proposes rules to address foreign problems. The U.S. already recognizes robust personal rights for children. More importantly American culture embraces the value of children. We do not elevate the condition of our own children by diminishing the standing of those who care most about them. And children in other countries are not helped if we ratify the CRC, nor hurt if we don’t. Ratification of the CRC without the amendment below decides only whether we will keep our own legal and cultural standards or accept a standard conjured up from abroad.

This proposed amendment is a modest, restrained approach that will preserve the existing law of the U.S. in the event that the CRC is approved by the Senate and later ratified. You can sign a petition in support of this amendment here.

PROPOSED PARENTAL RIGHTS AMENDMENT TO THE UNITED STATES CONSTITUTION

SECTION 1

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

SECTION 2

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.

SECTION 3

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.