Editor's Note: After our very own attorney Publius Huldah, broke down the Parental Rights Amendment, we were contacted by Michael Ramey representing Michael Farris of Homeschool Legal Defense Association (HSLDA), who was the architect of the Parental Rights Amendment to the United States Constitution. Mr. Farris wanted the opportunity to respond to the article and so we are granting him the opportunity to do just that below. If you wish to read the previous article to understand Farris' response, you may do so by clicking here. Our hope is that this will air out both sides so that parents can make an informed decision. "The one who states his case first seems right, until the other comes and examines him." --Proverbs 18:17
The blog posted by Publius Huldah gives the appearance of a scholarly critique of the Parental Rights Amendment but it lacks any actual scholarship. In short, the author simply does not understand the subject matter of either parental rights or the basics of American Constitutional Law.
For readers who are unfamiliar with my thirty-six years of legal practice, let me give you a brief summary. I am a constitutional litigator who specializes in parental rights. I also teach constitutional law at Patrick Henry College where I am the Chancellor. I have published numerous law review articles and have written 15 books. I have argued before the Supreme Court of the United States, eight federal courts of appeals, and the appellate courts of thirteen states.
As the founder of the Home School Legal Defense Association, I have a clear record as one of the leading defenders of parental rights in the nation.
In addition to teaching Constitutional Law at Patrick Henry College, I also coach the Moot Court team, a form of debate that simulates an argument before the Supreme Court of the United States. My team has won seven national championships—including the last five in a row. No other college has ever won more than one championship.
I should also disclose that I am the principal author of the Parental Rights Amendment.
In short, I have the background as a teacher, author, and litigator to explain both the Parental Rights Amendment and the basics of American Constitutional law.
Now let's turn to the analysis by Publius Huldah.
1. Amending the Constitution is not an act of the federal government.
Huldah contends that the Parental Rights Amendment "strips parents of their God-delegated authority over their children, and transfers that to the federal government." Her basis for this assertion stems from her erroneous application of the unobjectionable contention that Congress does not have the enumerated power to regulate the relationships between parents and children. However, the Parental Rights Amendment is not an act of Congress.
Huldah doesn't understand the nature of our Constitution.
The Constitution is not created by Congress. Congress was created by the Constitution. Congress (by itself) cannot create any amendment to the Constitution. Constitutional amendments are created by a two-thirds majority vote of both houses of Congress which is followed by ratification by three-fourths of the several states.
When the People's representatives have voted in such numbers for a constitutional amendment, it becomes part of the organic act of the People. We the People make the Constitution (including amendments) to control the government.
Huldah doesn't seem to understand a corollary principle: The Constitution (including amendments) never controls people—ever. Constitutions either grant government power or limit that power.
But her most fundamental error is to assert that the Parental Rights Amendment will be created by Congress. Simply not true.
2. The Parental Rights Amendment gives no power to Congress to regulate parents and children.
There is a very simple way of discovering when an Amendment gives power to Congress. The language of the amendment includes words like "Congress shall have the power to enforce this article by appropriate legislation." You find such words in the 13th, 14th, 15th, 19th, 23rd, 24th, and 26th Amendments. The Parental Rights Amendment contains no such grant of power to Congress. And this is on purpose.
Rather than granting power to any level of government, the Parental Rights Amendment prohibits all levels of government from invading our rights as parents.
It is just like the Second Amendment in this regard. The Second Amendment gives no level of government the power to regulate guns. (Any such power comes from some other provision of the Constitution [state or federal]). And the Second Amendment is a limitation on the exercise of such powers.
3. Parents have both rights and responsibilities vis-à-vis their children.
Huldah asserts that parents have no rights over their children but only God-given responsibilities. If we are talking about man's relationship with God, then she is right. But when we are talking about a parent's relationship with the federal government then parents do have rights.
Let's make Huldah's theological and legal error plain with an analogy. As it pertains to a man's relationship to God, no man has the right to reject God. God grants every man the uncoerced opportunity to accept Him or reject Him—but with the decision come eternal consequences. No one has the right vis-à-vis God to reject God without consequences.
But, when it comes to man and government, no government has the authority to demand that a person believe in a god or even the One True God of the Bible. As it pertains to our relationship with government, men do have the right to believe as they wish about God, and government is without power to punish them for their choice of belief.
It is similar with government and our rights as parents. Who decides where your child goes to school? Parents, not government, have the right to make that decision. Who decides when your child should receive medical treatment? Parents, not government, have the right to make medical decisions.
The most important thing to realize when assessing Huldah's argument is that she rejects as a matter of theology the principle of parental rights in any context. She is simply wrong about this as she is about so many other things.
4. The Parental Rights Amendment does not give the Judiciary legislative power but constrains the judiciary's exercise of its existing power.
Parents need to have the ability to fight effectively against government in courts. That is the central reason we need the Parental Rights Amendment.
If the government tries to stop a parent from homeschooling or making medical decisions for their child, the parent needs the ability to fight the government in court and needs legal weapons that will help gain a victory.
Asserting that parental rights are God-given and inalienable won't work in current American courts. I have litigated hundreds of parental rights cases, while I doubt Publius Huldah has ever litigated anything at all. If she did know anything about parental rights litigation she would be familiar with Justice Scalia's opinion in the Troxel v. Granville decision of 2000. Scalia said that he believes that parental rights are inalienable rights from our Creator as listed in the Declaration of Independence. However, Scalia used his vote on the Supreme Court to declare that parents have absolutely no rights that judges can protect – because to have protected rights, such rights must be listed in the Constitution.
Now, I am not agreeing with Scalia's analysis. But I am bringing in a healthy dose of legal reality. Unless judges have actual legal texts that protect our rights, many of them don't believe that we have protectable rights at all.
If you want to get any legal protection from judges like Scalia (and there are a great number of judges like Scalia) you have to have a textual basis for arguing that we have protected rights.
Judges generally take three different positions on parental rights.
a. Parents have no judicially enforceable rights because there is no legal text for this right. (This is the Scalia position).
b. Parents have only a low-level right that may be easily overcome by the government. (This was the position of several of the other justices on the Supreme Court in the Troxel case.)
c. Parents have a fundamental right to raise their children which may be overcome only on proof of an exceedingly important necessity [e.g., to protect the child's life from abuse]. (Only Justice Thomas held this position in the Troxel case.)
The Parental Rights Amendment silences the first two classes of judges and gives a textual command that enforces the Clarence Thomas position (which was the traditional view of the Supreme Court before Troxel.)
If you want no rights for parents or if you want low-level rights, then do nothing. If you want the highest level of legal protection for parents, then you need to support the PRA to ensure that parental rights are a fundamental right found in the text of the Constitution.
5. Publius Huldah's argument about treaties is just dead wrong.
Let me add to my credentials just a little. In addition to a Juris Doctorate that I earned in 1976 from Gonzaga University, I recently earned the additional degree of an LLM in Public International Law from the University of London.
I have been one of the leading opponents of both the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities. Publius Huldah purports to be against both of these treaties but claims that the PRA will enhance the treaty power of Congress.
She doesn't know what she is talking about. I am a proven leader against these treaties and she has no similar record on which to base her claim.
Treaties never trump the Constitution of the United States in American courts. However, there are two problems that are not fixed by that premise. First, American courts have started using treaties to interpret our Constitution. In at least two cases the Supreme Court has used the UN Convention on the Rights of the Child to interpret the 8th Amendment to the U.S. Constitution.
The PRA prevents the Court from using international law of any kind to interpret the Constitution.
There is a second reason that we need Section 5. If a case ends up in an international court, then the normal rule is that the treaty trumps the nation's domestic law including the national constitution. However, under the Vienna Convention on the Law of Treaties, there is an exception to this rule. If a nation's Constitution is violated by a treaty relative to the capacity to enter into the treaty, then the Constitution will prevail over the treaty even in international courts.
Section 5 of the PRA contains a rule that precludes the United States from having the capacity to enter into any treaty that invades parental rights. Thus, this section would ensure a victory for American parents even if their case somehow ends up in front of an international court.
6. Who are you going to believe—a trusted advocate for parental rights or an anonymous blogger?
Publius Huldah says that "blind trust in charlatans and politicians is destroying us. They pretend to be what they are not in order to deceive you."
If I am only pretending to be an advocate of parental rights, I have kept up the charade for a very long time—over thirty years. I was named one of the Top 100 Faces in Education for the 20th Century by Education Week magazine because of my defense of the parental right to homeschool.
Huldah appeals to Scripture and yet fails to follow it. First, she knows that I claim to be a believer yet she feels free to call me a charlatan without ever coming to me under Matthew 18 to show me my sin and to give me an opportunity to either repent or show her she is in error.
Secondly, she clearly violates 1 Timothy 5:19 which says: "Do not entertain an accusation against an elder unless it is brought by two or three witnesses." Not only have I been an elder in various churches for several decades, I think I have a legitimate claim to be an elder within the parental rights/homeschooling movement.
Accusations of me being a charlatan by anonymous bloggers should be given no credence at all. This is what Scripture says. Such accusations are not to even be "entertained."
I hope some good comes from this abusive blog posted by Publius Huldah. It is just sad that I have had to expend so much time answering her scurrilous accusations when there are real battles that must be fought.
But that is something that Publius Huldah doesn't seem to understand. I have been in the battle for over 30 years. I have won many and lost some, but there has never been any legitimate doubt of which side I was on.
Publius, what battles have you ever fought? Show me with your life which side you are on. Blogs are easy to write; real battles are much harder.