Michael Farris

The CRC is a comprehensive treaty covering economic, social, political, civil, and cultural rights of children. No area of our law regarding children lies outside of its scope. And virtually all American law on children comes from the laws of our 50 states. Yet our Constitution says treaties override state laws.

How would this work in practice?

The law in every American state allows parents to administer reasonable spankings to discipline their children. The UN’s official body on children’s rights has repeatedly ruled that any parental spanking violates the treaty’s requirements. The CRC will trump state laws permitting spanking.

Many school districts allow parents to allow their children to “opt out” from certain controversial courses such as sex education. The UN body holds that such parental involvement violates the treaty. The CRC will trump all state “opt out” laws.

So when Professor Todres says that the UN has no enforcement mechanism, he is telling a half-truth. The UN treaty establishes the law; American courts and child welfare agencies can, will, and must enforce the UN standards by virtue of Article VI of our Constitution.

One federal judge in New York has already held that the CRC is binding on the United States, by deeming a New York “state” policy on child abuse investigations to be in violation of the treaty’s guarantees.

An Ohio state judge bizarrely assumed that the Senate had already ratified the treaty and ordered parents to stop smoking because it harmed children’s health. While badly mistaken about the status of the CRC, his decision foreshadows what to expect if the Senate ratifies this treaty.

Under this treaty, every decision made about children —whether by government or parents— is subject to governmental review. Armed with the CRC, any social worker can second-guess any parent based on an opinion that the parents’ choice was not in the “best interest” of the child. Under this subjective standard, no family is safe from governmental intrusion.

The scope of this treaty reaches to the absurd. The UN Committee on the Rights of the Child held that both Indonesia and Egypt violated the CRC because they spent more on their military than on programs for children.

Thankfully, the treaty’s mandates on government spending, unlike the ban on spanking -- which would be immediately enforceable in American courts—would certainly be viewed by our current Supreme Court as matters left to the discretion of Congress. But given the exalted views of international law held by key Obama nominees for the Justice Department, even something this radical may one day become “judicially enforceable.”

The ultimate question is: Who should make our public policy on parents and children? Our elected state legislators? Or, an international treaty regime headed by a committee of 18 international “experts” sitting in Geneva.

Unless we fully intend to comply with UN treaty’s radical dictates, our Senate must reject the Convention on the Rights of the Child.


Michael Farris

Michael Farris is the Chancellor of Patrick Henry College, where he teaches constitutional law.
 
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