Do people’s “natural, essential and inalienable rights” entail “directing the upbringing, education, and care of their children?” A Republican-sponsored bill aimed to let voters decide whether to add that language to the state’s Bill of Rights. Majority Democrats killed the bill in committee on April 20.
I’m sensitive to potential problems of ambiguous language and unintended consequences. For example, a couple years ago I opposed a ballot measure purportedly for school choice because of trouble with its wording. I think the parental-rights bill’s language is basically on track, although it needs some refinement.
Any language about parental rights needs to recognize the rights of children. But I don’t think a reasonable reading of the language as-is could rationalize child abuse or neglect.
Inalienable rights
In presenting the bill at committee, Rep. Brandi Bradley, noting the legislature has heard the matter before, anticipated and answered common objections. Bradley summarized, “This resolution simply says that parents, not the government, have the fundamental, inalienable right to raise their children.”
There is an issue with the term “inalienable” here. Of course this invokes the language of the Declaration of Independence about people’s “unalienable Rights” including “Life, Liberty and the pursuit of Happiness.”
Article II, Section 3 of the Colorado Constitution, part of the state’s Bill of Rights, says, “All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.” This is the part that the bill in question would amend by adding the new language about parental rights.
The problem is that the term “inalienable” means “incapable of being alienated, surrendered, or transferred.” That doesn’t seem to apply here. A parent can lose parental rights in certain circumstances by being abusive or neglectful. But maybe that’s comparable to how a convicted criminal can lose certain rights or be restricted in the practice of those rights. The idea is that forfeiting one’s rights through misconduct is not the same thing as alienation.
There’s another way in which parental rights are alienable: Parents may choose to surrender care of a child to another responsible party. Recently the governor signed into law a measure expanding to thirty days the window in which a parent may surrender a child to a “safe haven.” In an obvious way, then, the rights of parenthood can be transferred to another party.
Because the state can terminate parental rights in some cases of abuse or neglect, parents can voluntarily surrender parental rights in some circumstances, and (to add another wrinkle) courts can recognize emancipation of a minor, maybe the term “inalienable” doesn’t apply here. If that’s the case, a potential fix is simply to create a new section of the Bill of Rights specific to parental rights, rather than tack on the language to the “inalienable rights” section.
Getting the language right
Language that encompassed the relevant caveats, then, might read as follows: “All persons have a fundamental right to direct the upbringing, education, and care of their children. This right shall not be infringed except as necessary to serve a compelling governmental interest and by means narrowly tailored to that interest. Nothing in this section shall be construed to permit abuse or neglect of a child, to limit the authority of courts to terminate or restrict parental rights as provided by law, to prevent voluntary relinquishment of parental rights in accordance with law, or to preclude the emancipation of a minor as provided by law.” (Yes, I had ChatGPT help me tighten up my draft; this language probably needs additional work.)
We can compare this possible language to what other states have done. Florida’s statutory “Parents’ Bill of Rights” begins, “All parental rights are reserved to the parent of a minor child in this state without obstruction or interference from the state.” However, the rest of the language contains substantial exceptions.
Likewise, Virginia’s codes state, “A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.” However, this must be read in the context of the rest of the codes, which include sections on child abuse and neglect.
I listened to all the committee testimony from April 20, all in favor of the bill. A couple speakers accused the Democrats on the committee of promoting a Marxist or Communist agenda (not exactly an effective way to win legislators to your side).
Several speakers focused on transgender issues. I’m on board with the idea that government should not be able to keep secrets pertaining to children from parents, except perhaps in cases of demonstrated abuse or neglect, or push children to “transition.” At the same time, trans kids have rights too, and parents do not have an absolute right to suppress a child’s transgender identity. In the extreme, such suppression could constitute abuse.
The rights of parents and legal guardians are unique in that they are profoundly important and at the same time limited in scope, precisely because each child has rights properly protected by government. Parental rights fundamentally are custodial rights; children are people, not property.
Generally, parents know their children best and love them most. Government should recognize the primary importance of the parent-child relationship and intervene only when necessary to protect the rights of the child. Our laws should recognize both the rights of children and the rights of parents to raise their children, consistent with the rights of children.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.
