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H.J.Res. 36 (116th): Proposing an amendment to the Constitution of the United States relating to parental rights.


Should “liberty… to direct the upbringing, education, and care of their children” be included in the Constitution?

Context

The U.S. is the only eligible country not to have ratified the United Nations’ Convention on the Rights of the Child. Some worry that the treaty, if ratified, could transfer more control over the parent-child relationship from the states to the nation, or from the nation to the world.

They want a constitutional amendment to guarantee such rights, which are currently generally respected by the federal government though not officially enshrined in the Constitution.

What the constitutional amendment does

A new constitutional amendment proposal would establish parental rights in the U.S. Constitution — along with the existing rights to freedom of speech, religion, press, and the rest.

Specifically, it would enshrine “the liberty of parents to direct the upbringing, education, and care of their children.” The education component would enshrine the right to choose a private schools, religious school, or homeschooling.

It also clarifies that the amendment would not “apply to a parental action or decision that would end life.’’ In other words, this presumably means the rights of a parent would not extend to the right to abort a pregnancy.

It was introduced on January 30 as House Joint Resolution 36 by Rep. Jim Banks (R-IN3).

What supporters say

Supporters argue the bill explicitly gives America’s 173 million parents more rights and freedoms apart from government control.

“Parents ought to have the right to direct the education and upbringing of their children, regardless of where they live,” Rep. Banks said in a press release. “Without fundamentally guaranteeing the parental rights with a constitutional amendment, these natural rights of parents are left to the discretion and interpretation of government bureaucrats and elected officials.”

“As the father of three young girls, I find the continual erosion of parental oversight and care in their children’s lives unacceptable,” Rep. Banks continued. “And I urge my colleagues to join me in solidifying parental rights as a fundamental right protected by the U.S. Constitution.”

What opponents say

Opponents counter that the amendment could have unintended consequences, from the medical to the legal.

“The amendment was dangerous, because children would be left in abusive homes and teenagers would be prevented from obtaining information and services that would help them avoid pregnancy, STDs and abortion,” Patricia Donovan of the Guttmacher Institute wrote in a summary of a similar state-level constitutional amendment that failed in Colorado.

“Although attractive on paper,” Donovan continued, “in practice it would turn public schools into ideological battlegrounds for parents with opposing values and make adoptions more difficult because adoptive placements could be challenged in court.”

“And it was so vague that it would result in a flood of litigation initiated by angry parents, at taxpayers’ expense, against anyone working with children, including teachers, librarians, social workers and counselors.”

Odds of passage

The amendment has attracted 15 House cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee.

A constitutional amendment requires passage by ⅔ of the House and ⅔ of the Senate, as well as ¾ of the individual states. Surpassing any one of those thresholds may be impossible amid the 21st century’s political polarization — let alone surpassing all three thresholds.

The last constitutional amendment, the 27th Amendment, was ratified in 1992.

Last updated Feb 4, 2019. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 30, 2019.


Constitutional Amendment

This joint resolution proposes a constitutional amendment stating that

the liberty of parents to direct the upbringing, education, and care of their children is a fundamental right; the parental right to direct education includes the right to choose, as an alternative to public education, private, religious, or home schools, and the right to make reasonable choices within public schools for one's child; neither the United States nor any state shall infringe upon these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served; the parental rights guaranteed by this amendment shall not be denied or abridged on account of disability; and this amendment shall not be construed to apply to a parental action or decision that would end life.