States should lead on parental rights
Published March 23, 2023
By John Hood
A few weeks ago, three members of the North Carolina Senate — Amy Scott Galey of Alamance County, Lisa Barnes of Nash County, and Michael Lee of New Hanover County — filed a state Parents’ Bill of Rights to ensure that local schools respect parental authority to direct the education, development, and medical treatment of their children. This legislation, Senate Bill 49, is well-crafted and deserves support.
Shortly afterward, several members of the U.S. House of Representatives filed a federal Parents’ Bill of Rights to ensure that local schools respect parental authority to direct the education, development, and medical treatment of their children. This legislation, H.R. 5, is poorly crafted and deserves opposition.
State and federal lawmakers are responding to the same problem. However well-intended their actions may be, teachers, counselors, and administrators have no business withholding information about a child’s gender dysphoria or mental-health struggles from parents unless the latter’s rights have been modified or terminated by due process of law. And parents have every right to know what their children are being taught in school.
Children are neither pets nor little adults. They are, by nature and by law, entrusted primarily to the care of their parents or guardians for a limited, albeit crucial, period of time.
Children deserve protection from abuse and neglect, of course. Yet they are also, by their very nature, incapable of forming valid judgments on their own about many issues. They certainly don’t possess sufficient knowledge to make such life-altering decisions as whether to ingest mood-altering pharmaceuticals, hormone blockers, or abortifacients.
So why do I support Senate Bill 49 but oppose H.R. 5? Because enacting such legislation is and ought to be a state responsibility. The federal government ought not usurp it. I offer three arguments.
First, state primacy here represents the original — and as yet unamended — rules upon which our system of government was founded. Article One of the U.S. Constitution grants Congress to power to legislate only on specified issues such as defending the nation, coining money, and regulating immigration. Defending parental rights in schools isn’t on the list.
Advocates argue that bills like H.R. 5 simply represent Congress attaching conditions to the education grants it appropriates to state and local governments. That is, however, an exception that swallows the rule. The framers clearly meant for the federal government to possess only enumerated powers. Other powers are, as clarified by the 10th Amendment, reserved to the states — exercising their far-broader “police powers” — or to the people themselves, acting as individuals or through voluntary associations.
Second, there truly is a need here to strike the proper balance between the primary authority of parents and the need to protect vulnerable children from potential abuse. I think Senate Bill 49 strikes such a balance. I think its opponents overstate the risks, and understate the benefits, of informing parents when their children exhibit gender dysphoria or persistent depression, for example.
What if we’re wrong, though? When state lawmakers pass a bill, they can monitor its implementation close to home and adjust accordingly. I don’t trust the federal government to perform these functions nimbly and effectively. Neither should you.
Third, it may well be that bitter disputes about such issues as graphic content in library books or transgender athletes in competitive sports cannot effectively be resolved on a national scale, in a manner that hundreds of millions of Americans can live with. By embracing the genius of our constitutional order — the distribution of distinct powers not only among the legislative, executive, and judicial branches of the federal government but also between Washington and the states — we empower different regions to pursue their own policies, reflecting their own priorities and value judgments. Individuals can, in turn, vote not just with their ballots but with their feet.
In this case, the proper federal role is to ensure that children not be taken across state lines by unauthorized persons. Otherwise, let states legislate on such issues. That’s their job.
John Hood is a John Locke Foundation board member. His latest books, Mountain Folk and Forest Folk, combine epic fantasy with early American history.