September 19, 2005
Scott Defisks: HoNDA Sec. 2(1)
SEC. 2. FINDINGS.
Congress finds as follows:
(1) The right of parents to direct the education of their children is an established principle and precedent under the United States Constitution.
Chris says, “The words parent, education, and school do not appear anywhere in the US Constitution. I would take that to mean Congress has no business discussing the issue at all.” I have six follow-up questions for Judge O'Donnell...
Chris, if you’re serious about this, please answer the following questions:
(a) Do states have the authority to prohibit homeschooling?
(b) Was homeschooling ever “illegal” in any states? If not, why not?
(c) Are Pierce v. Society of Sisters and Yoder v. Wisconsin established precedents of the United States Supreme Court?
(d) Is the “right of parents to direct the education of their children” a valid principle of constitutional law?
(e) Is this right a “liberty” that is protected by Section 1 of the 14th Amendment?
(f) Does Section 5 of the 14th Amendment give Congress authority to enact “appropriate legislation” to protect liberty and ensure equal protection?
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Can he interrogate me on my own site? I don't have to take this!!! :) I left the house at 6 AM this morning, and got home at about 9:15 PM. If one of my wise readers would like to take this up....
However, to attempt to answer quickly what I think Scott is getting at...
I don't think we have a federally guaranteed right to homeschool. The Constitution is rather clear - powers not explicitly given to the federal government falls to the states, or the people. The states are free to regulate home education to whatever extent they want so long as it doesn't trample federally guaranteed rights such as religion or freedom of speech.
The problem here is not a lack of laws.
A federal government powerful enough to grant our right to homeschool is also powerful enough to take it away. It's better that they have no interest in us at all.
Posted by: COD at September 19, 2005 10:36 PMChris,
I disagree. When the Constitution was written, the authority of a man to run his family's affairs was unquestioned. This would have been even more fundamental than anything covered in Amendments 1 through 8. Pierce v. Society wasn't explicit in that it didn't cite the 9th Amendment, but it's pretty clear that's what the Court was driving at.
I think the 9th trumps the 10th here.
Posted by: Daryl at September 20, 2005 04:18 AMI agree with Daryl here and disagree with Justice Scalia. Scalia argues that federal judges have no right to protect "the right to direct the education of a child." He says:
In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents' authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-138#section5
Posted by: Scott W. Somerville at September 20, 2005 11:01 AMIf the comment entry box is gone it's because comments are closed for this entry. Please feel free to use the "contact" link above to get in touch.