Response to Come Out and Play

I have a lengthy response to "Come Out and Play"'s recent comments and decided to make an entire post after some problems with trying to just make them "comments". I have included her comments with mine following the "----"'s.

Dear Come out and play,

"Your country's constitution separates religion and state so any Biblical arguments have no constitutional locus bar that rights are endowed by the Creator."

---- First, I think you are misunderstanding my perspective and audience. My focus on a Biblical understanding of the Constitution is directed at Christians and therefore encouraging them to use a Biblically based worldview to evaluate the Constitution, domestic law, international law, and their behavior in response to each of these. Ultimately, God’s Word stands above the Constitution or any other law of man as the final standard for a Christian’s actions. I am encouraging Christians to respond Biblically to this issue. It makes no difference if the Constitution recognizes it or not.

----Second, have you read the preamble to the Declaration of Independence lately? While I grant that the Constitution does not contain this wording, I wonder if the authors thought it unnecessary to repeat what was so well written into the Declaration of Independence.

--- Finally, your theory of separation of religion and state are subject to the widespread deception of our day. This phrase is not found in our Constitution. The Bill of Rights does say “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Wasn’t it Thomas Jefferson who used this phrase, “separation of church and state” in a letter to the Danbury Baptists. A personal letter, even from Jefferson, hardly qualifies for a ratified component of the Supreme Law of the Land.

---Back to an earlier point in this paragraph. If the UN CRC prohibits the free exercise of religion that includes the education of children along that religion’s lines, then it contradicts the Bill of Rights. I could go on, but I believe my points clearly state my case.


""practically equal" is loose terminology. Either it is equal or superior - other than that you have no worries?"

--- Since you want to be picky on the wording, permit me to expound further on my proper use of the word “practically” by defining my terms. Depending on which legal expert you consult, some place treaties (as ratified by the protocol of Article 6 of our Constitution) on par with Congressional law and others place treaties above the law, only subservient to the Constitution. Others would say that treaties can alter Constitutional provisions. Reid v. Covert in the 1950’s said that treaties override implicit Constitutional rights. This means, that unless the right is explicitly stated in the Constitution, the given treaty can take that right away. Parental rights are currently an unwritten, or implied right, that could be lost through the treaty process. The majority opinion of those in power is that “supreme law of the Land”, as stated below in Article 6 of our Constitution, means that ratified treaties are equal to the Constitution. Others make a reasonable case that this phraseology refers to their desire to uphold treaties made prior to the Constitution’s acceptance (i.e. 1776-1789). Regardless of opinions, “practically” speaking, treaties are “practically” at least equal to the constitution.

Portion of Article 6 “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”


"The USA signed the UN Charter, in its explicit terms, the superior item of international treaty law, its effects can be binding even on non-signatory states."

--- If we are bound to follow the letter of the law without ratification, why not just wait for others to ratify and avoid the trouble of a Senate vote? No, we are a sovereign nation, free to enter into treaties or not to enter into treaties. You obviously subscribe to Customary International Law, which states in legal terms exactly what you stated above. While you are accusing the US of missing the mark, please look over the numerous egregious violations of these signatory countries. You will get much more bang for your buck there.

"Let us look at the US paying its dues - for quite some years the UN was in arrears, yet its duty was to pay. That was remedied last year."

--- This is essentially a rabbit trail, unrelated to this treaty. Regardless, you might want to research how many countries are in arrears. According to a Reuters article (http://www.reuters.com/article/idUSTRE59K5Y520091021), only 22 countries were paid in full as of October 2009.

"It is in breach, along with every other nation, of Articles 43, 45 and 47, concerning the establishment of armed and airforce contingents for peacekeeping and a Military Staff Committee. I see no challenge in your courts, this has been so since 1945."

--- So? What does that have to do with the UN CRC?


part 2
The USA has ratified 2 of the Protocols to the Convention on the use of children in armed forces and prostitution and exploitation. No argument advanced there against such a process.

----These were limited protocols in agreement with the basic law of our nation. We therefore agreed to do what we were already doing. While you are thinking about this, consider all the countries which have not signed these optional protocols. Are they therefore “for” children as soldiers and for child prostitution? Please take aim at them where real harm is occurring.

"I also have some problem with the use of the term "parental rights". This has been advanced in response to the idea of there being children's rights enshrined in a treaty and signed and ratified by the US? That Convention is explicit in what these children's rights are, they are detailed and set down."

"You use 'parental rights' in the plural, and make emotional appeals as to their defence. But surely you need to state what you believe these to BE? What ARE parental rights, in the plural?"

--- Again, nitpicky and silly, but I’ll play along. I wonder if you are a parent. If so, you might at least pause before asking such a question. A parent would already know by experience that no list could ever encompass the comprehensive scope of parenting rights or responsibilities. A parent would say “right-S” if only to emphasize the wide ranging nature of parenting.

--- Furthermore, any attempt to define parenting would undoubtedly leave out something. In the legal world, this “left out” facet would then not be legally protected. In other words, “not listed” means “non-existent”. As the amendment states, “The liberty of parents to direct the upbringing and education of their children is a fundamental right.” Parental rights are the liberty to “direct the upbringing and education of their children”. This language comes from prior US Supreme Court Cases upholding parental rights. If it has to do with “care” or “education”, it is protected. If it was good enough for the Supreme Court, why not for you?

---If that is not good enough, look at the converse of the CRC for parental rights: right to educate your child, right to direct their speech, right to direct their choice of religion, right to limit their privacy, right to direct their associations, right to direct their media sources, and more. The CRC has hit on many of the high points.

"Unless you specify, you have no case for a Constitutional amendment. If you mean, for example that:"

"In the raising and disposition of their children, parents have total authority in all matters regarding the upbringing, welfare and treatment of those children" then you must be explicit. That I would call the 'owned chattel' approach, arguable I suppose, emotionally-laden, maybe has religious sanction (and by no means just Christianity or even Islam).

"Does your Constitution support such a claim? Discuss. Does the Bible? Likewise."

---Our Constitution does not provide what you describe above and neither does the Bible. You describe an absolute right when you use the word “total”. A fundamental right as defined in our country’s law is not absolute. Our organization is not advocating for “total authority”, just a fundamental right. We would oppose any law that proposed absolute authority. Therefore, you are misunderstanding us, or you are intentionally misleading in your rhetoric here.

---The Bible places the primary responsibility for child rearing on the parents, not the state, not even the church. That is clear and implies that parents must have the freedom or authority to carry out these responsibilities.

"So far, without such a claim being put to the people of the US, I think you will find that neither State nor Federal law supports a notion that kids are totally subservient to parents and have no rights under the Constitution which in those terms, of rights, I gather is superior to state constitutions? "

--This statement is somewhat unclear, so unless you expound, I will leave it alone.


Sincerely,
Eric Potter MD