Family Takeover

Imagine a law in America that could set children against their parents, centralize power away from the states toward the federal government, mandate increases in government spending regardless of taxpayer wishes, bypass the House of Representatives, and abrogate constitutional limitations on government power. Such a measure may soon come up for ratification by the US Senate: the UN Convention on the Rights of the Child (CRC).

Children have become today’s favorite political weapon. From gun restrictions to mandatory seat-belts, the way to neuter opposition to intrusive government measures is to present them as being “for the children.” But the first casualties in the politicization of children are parents and therefore the family. Professionals who advocate for other people’s children inevitably do so at the expense of those whose first responsibility is their own children.

The CRC illustrates how radically human rights law has turned from its fundamental purpose, to be a shield protecting individuals from government intrusion, to being used as a tool of government intrusion. As Geraldine Van Bueren, a law professor and one of the drafters of the CRC, approvingly observed in a 1999 article in the Human Rights Quarterly, these laws are not about protecting political prisoners or dissenters from repression, but about redistributing power and wealth among social groups:

International human rights law is a peaceful but powerful instrument of change. In essence, human rights is about peacefully redistributing unequal power. . . . The essence of economic and social . . . rights is that they involve redistribution, a task with which, despite the vision of human rights, most constitutional courts and regional and international tribunals are distinctively uncomfortable.

She bluntly states that “the CRC provides an ideology for state intervention” into social and economic life. It is not a limitation on state power but a rationale for expanding it.

Subverting Sovereignty

Indeed, human rights conventions like the CRC can even transform the very nature of treaties, especially in the United States. At the time of the American founding, treaties were forged between sovereign states and were clearly limited to matters of foreign policy, such as alliances and trade. That is why the Constitution provides for them to be concluded by the president and Senate alone, without the participation of the more democratic House of Representatives.

Modern human rights conventions, however, increasingly govern not just nation-states but also sub-national groups and even individuals. Whereas in most countries treaty enforcement is carried out as part of a nation’s foreign policy, in America a ratified treaty becomes by constitutional stipulation the “supreme law of the land,” equal to the Constitution itself. That means that domestic courts are automatically required to enforce its provisions, without recourse to international tribunals.

Treaty-making thus presents a loophole through which various interest groups can effectively legislate American domestic policy while bypassing the people’s elected lawmakers in the House of Representatives and in state legislatures. “Other nations preserve their right of sovereignty and the people’s right to self-government,” says Michael Farris of the Home School Legal Defense Association. “The U.S. is unique in forfeiting the right of self-government to ratified treaties.”

The CRC thus contributes to the dissolution not only of national borders but also of boundaries between national and local governments. Areas of jurisdiction now constitutionally forbidden to the federal government would be subject to mandated federal intervention. Moreover, the federal government itself would become the marionette of a UN committee. At a stroke, the CRC would undermine every authority below the UN: parents and the family, state governments, and the national government. The entire federalist principle—the original justification for the United States Constitution itself—would become worthless.

Anyone who doubts this need only glance at the family policy of the European Union. The EU has no legal authority to legislate in areas of family law or policy, which theoretically are left to national governments. Yet in practice, the EU sponsors many activities that undermine parents and traditional families. Driving much of this activity is EU collaboration with the CRC.

One should also note the recent, innovative use by American courts of the concept of “customary international law” to incorporate treaty provisions into their rulings, even when the relevant treaty has not been ratified by the United States. In Lawrence v. Texas (2003), for example, the Supreme Court invoked international law in striking down a Texas sodomy law. Since then, the Court has twice cited the CRC itself to decide a case: one involving the death penalty (Roper v. Simmons, 2005) and one involving life sentences without parole (Graham v. Florida, 2010). If courts are doing this even before ratification, imagine what will happen afterward.

The Dubious “Best Interest” Standard

One seemingly unexceptionable requirement of the CRC is that governments ensure the “best interest of the child.” In fact, however, the “best interest” standard is highly destructive of parental rights, because it allows government officials to decide the “best interest” of other people’s children, usurping that prerogative from parents.

Traditionally, legal authority over children has been recognized as residing with their parents, unless they somehow forfeit it. In Parham v. J. R. (1979), the Supreme Court recognized “that natural bonds of affection lead parents to act in the best interests of their children.” As Justice Potter Stewart observed in that case, “For centuries it has been a canon of the common law that parents speak for their minor children. So deeply imbedded in our traditions is this principle of law that the Constitution itself may compel a State to respect it.”

This principle has been so eroded in American domestic law that it is now the norm to assume precisely the opposite: that “the child’s best interest is perceived as being independent of the parents,” as family law practitioner Robert Williams writes, “and a court review is held to be necessary to protect the child’s interests.”

The CRC would place additional international pressure on this principle. According to Professor Van Bueren:

Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child. Thus, the Convention challenges the concept that family life is always in the best interests of children and that parents are always capable of deciding what is best for children.

Perhaps most extreme is Article 9, which permits children to be removed from their parents on the simple judgment by the government that it is necessary “for the best interests of the child.”

More Dubious Provisions

Then there is Article 12, which provides that signatory governments

shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

This provision essentially institutionalizes the right of children to rebel against their parents’ authority and puts the state on the side of the child, with the backing of international law. “The Children’s Convention potentially protects the rights of the child who philosophically disagrees with the parents’ educational goals,” writes Van Bueren.

Any parent can recognize the threat. What makes the disagreement “philosophical”? What is the difference between a child who “philosophically” disagrees with his parents and one who simply doesn’t want to do his homework?

Consider also the provision regarding children’s “privacy.” Article 16 says that “no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence” and that “the child has the right to the protection of the law against such interference or attacks.” But against whom is the child’s privacy being protected? His parents?

Ironically, authorizing the state to protect a child’s “privacy” justifies massive state intrusion into family privacy. This illustrates how the concept of privacy—while valid (and in my view undervalued by many family advocates today)—is meaningless outside the context of the family.

These types of provisions might be innocuous when used to protect adults against government repression. But when applied to children, they have the effect of abolishing parental and all other authority between children and the state. This starkly illustrates how the family is essential to freedom, and how the state, when it claims to be protecting “freedom” and “privacy” and “rights”—without the mediating authority of the family—is the fox protecting the henhouse.

Out of the Mouths of Lawyers

The CRC’s provisions allow government officials to pose as the mouthpieces and defenders of other people’s children, children they do not know and do not love. The altruism of these officials is assumed without question, while parents are depicted as selfishly promoting their own interests, which are cast as contrary to those of their own children.

This mentality was expressed by Linda Elrod of the Washburn University School of Law in a 2007 paper in the Pace Law Review:

The interests of the child should be at the center of any decision-making. If the child is capable of articulating a perspective, the child should have client-directed counsel to get that voice before the court and the court should seriously consider it. Even if the child is unable to articulate a view, the child’s attorney can offer a child-focused assessment of the child’s needs. Because the child’s best interests may be different than one or both of the parent’s interests, the child should have a voice.

Elrod goes on to claim that “giving the child a voice, however, does not necessarily ‘conflict.’ Listening to the child does not mean not listening to the parents or others involved in the dispute. The key is to add the child’s voice to the voice of others being presented.”

However, in practice, this “child’s voice” comes out of the mouth of a lawyer or some other government official. The parents’ “voice” is just one among several, which officials may heed or ignore as they please. Indeed, it is difficult to see how the CRC can have any other purpose than to marginalize parents, a process that effectively abolishes the family.

Michael Farris remarks that “the child’s wishes seem to get special attention only when the parents want something different from the wishes of the government.” For example, he points out, “No criticism was leveled against either Ireland or the UK for failing to consider the child’s viewpoint in those cases where the parents left the child in the sex education classes.”

Payoffs & GONGOs

The CRC also allows UN and government officials to demand that expenditures be made to implement certain of its policies. One UN report cites Moldova for “inadequate financial support out of the state budget . . . for the implementation of the rights recognized in the Convention.” The Committee has also criticized Austria, Australia, Denmark, the UK, and other countries for not spending enough on social welfare programs. Thus, under the guise of “human rights,” the UN is trying to control the spending priorities of sovereign nations.

This paves the way for patronage payoffs to favored clients, in this case groups professionally involved in child welfare. The UN demands that Moldovan taxpayers fund pressure groups and “provide financial and material support to NGOs [non-governmental organizations] working for the protection and promotion of children’s rights.” Here UN officials are attempting to funnel Moldovans’ money to their cronies, who become extensions of the government.

This creates what some call “GONGOs” or oxymoronic government-organized non-governmental organizations. “At what point does government funding of NGOs make them no longer NGOs?” asks, an organization opposing the CRC. “If Moldova were to accede to the UN’s wishes and fund these non-government organizations, just how ‘non-government’ could they hope to remain?”

In their origins, writes philosopher Pierre Manent, “the protection, and first of all the recognition, of equal human rights was strongly tied to the construction of the sovereign state.” If we allow “human rights” to become a grab-bag for anything we choose to put on the political agenda—to the point of undermining the very institutions we have cultivated over centuries to both exercise and protect our rights—then not only will our freedoms become subject to exploitation by any number of cynical interests but so will everything else that is dear to us—including, in this case, our children.

Stephen BaskervilleStephen Baskerville is IAI’s Senior Fellow in Political Science and Human Rights. He is Associate Professor of Government at Patrick Henry College and Research Fellow at the Howard Center for Family, Religion, and Society and at the Independent Institute.

This article was originally published at on February, 2011.

The opinions published here are those of the writer and are not necessarily endorsed by the Institute.

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