Will the Amendment Grant the Federal Government Power over Parental Rights?
Answer from Michael Farris, J.D., LL.M:
Philosophically, the Parental Rights Amendment is similar to the Fifteen and Nineteenth Amendments, which establish and protect the voting rights of racial minorities and of women, respectively. All three recognize rights which ought to be protected, but which are or were at risk (or ignored) prior to the amendment.
However, there is a difference between these two earlier amendments and the proposed Parental Rights Amendment (PRA) which suggests that the PRA actually contains greater respect for the principle of federalism upon which our nation was established.
Section 2 of the 15th Amendment, and of the 19th Amendment, both say:
Congress shall have power to enforce this article by appropriate legislation.
No such provision appears in the Parental Rights Amendment. Several people have suggested that we do this as a matter of routine. I have steadfastly resisted this (and everyone has backed off on this issue) knowing that I would become an implacable enemy of the PRA if it were added.
Why is this important?
As the text is written, the Parental Rights Amendment simply limits the power of government. All proper recognition of rights (securing rights) involves the limitation of the powers of government. This is why the First Amendment is worded the way it is. The PRA limits the power of both the national and state governments, and for constitutional purposes, all limitations applicable to state governments, by definition, also apply to local governments.
There is absolutely no transfer of jurisdiction from the states to Congress. Congress does not acquire any power, and the states do not lose any power, by virtue of this approach.
In essence, this Amendment erects a “giant Stop Sign” to Congress and the States, telling them that they may not intrude on the rights of parents.