| FOR FURTHER READING The Current Status of Parental Rights The Threat from Federal Courts The Threat of International Law What the Supreme Court Says |
The threat to parental rights in America results from the precarious position in which these rights now stand in the courts.
The Supreme Court has identified specific categorizes of rights that are protected by the Constitution. A right may be fundamental or non-fundamental, and it may be either an explicit right or an implied right. The right of parents to direct the upbringing and education of their children is a fundamental, implied right.
ABOUT FUNDAMENTAL RIGHTS
Fundamental rights include the freedom of speech and expression, the right to participate in elections, and the right to be shielded from racial discrimination. Before infringing on these rights, the government must first demonstrate that it has an interest "of the highest order" and that it is using the "least restrictive means." The burden of proof is placed squarely on the shoulders of the government. On the other hand, non-fundamental rights receive far less protection. The government only needs to show that it has a rational reason to restrict non-fundamental rights: the burden of proof is on you to show that the state’s actions are irrational and illegitimate.
ABOUT IMPLIED RIGHTS
The Court also recognizes a distinction between explicit rights and implied rights. An explicit right – such as the freedom of speech or the right to be free from cruel and unusual punishment – is expressly stated in the black-and-white text of the Constitution. An implied right, on the other hand, must be drawn from other general provisions of the Constitution, which imply (in the Court’s determination) that the right exists. The Court then undertakes to define what protections this implied right entails. Throughout our history, courts have consistently ruled that implied rights are entitled to the same protection as explicit rights.
NOT EXPLICITLY PROTECTED IN THE CONSTITUTION
The Supreme Court has declared time and time again that parental rights are among the oldest and most revered of fundamental rights. This right, however, is not guaranteed in an explicit provision of the Constitution. Instead, parental rights are among the "liberties" that are guaranteed to every American by the Fourteenth Amendment.
The danger of implied rights is that their meaning is never entirely stable. Because parental rights are implied rights, the Court is free to redefine their meaning whenever it wishes.
PROTECTING PARENTAL RIGHTS
Parental rights in America are now in a precarious situation, facing possible destruction by federal court judges who deny the existence of parental rights, as well as by judges who refuse to recognize them because they are not explicitly protected in the Constitution. Added to these internal threats is the growing danger of international law which threatens to intrude upon the child-parent relationship.
The only way to shield this vital relationship from the onslaught of government control is by amending the Constitution to protect parental rights. It is the only way to ensure that parental rights are protected for this generation and the next.
