Abstract
“Children’s rights” is one of the hot button phrases of our times. Operating as an ideological Rorschach, the notion of rights for children divides people along deep cultural and religious as well as political fissures. From the Right, influenced by the hierarchical model of the patriarchal family, religious fundamentalists and conservatives attack the idea as destructive of parental authority and corrosive of traditional family values.1 From the Left, radically egalitarian thinkers agitate in favor of children’s liberation from adult control, as part of the unfinished business of raising all oppressed minorities to full and equal citizenship.2 Most Americans sit uncomfortably on the fence, admiring the libertarian ring of the phrase “children’s rights” but wondering what such an idea might mean in practice.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Reference
See Christian Coalition, A contract with the American family (Ralph Reed, Ed., Nashville, TN: Mooring, 1994).
See John Holt, Escape from childhood (New York: E. P. Dutton, 1974).
For a comprehensive international review of arguments in favor of rights for children, see The Ideologies of Children’s Rights 4 (Michael Freeman & Philip Veerman, Eds. Norwell, MA: Kluwer Academic, 1992). In the United States, various legal scholars have proposed theories of children’s rights, including Katherine Hunt Federle, Looking Ahead: An Empowerment Perspective on the Rights of Children, 68 Temple L. Rev. 1585 (1995); Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children’s Perspectives and the Law, 36 Ariz. L. Rev. 11 (1994); Martha Minow, Rights for the Next Generation: A Feminist Approach to Children’s Rights, 9 Harv. Women’s L. J. 1 (1986); Melinda A. Roberts, Parent and Child Conflict: Between Liberty and Responsibility, 10 N.D. J. L. Ethics & Pub Pol’y 485 (1996); Lee E. Teitelbaum, Foreword: The Meaning of Rights of Children, 10 N.M. L. Rev. 235 (1980); Barbara Bennett Woodhouse, “Out of Children’s Needs, Children’s Rights:” The Child’s Voice in Defining the Family, 8 B.Y.U. J. Pub. L. 321 (1994); and many others.
See, for example, Randy Frances Kandel, Just Ask the Kid! Towards a Rule of Children’s Choice in Custody Determinations, 49 U. Miami L. Rev. 299 (1994); Peter Margulies, The Lawyer as Caregiver: Child Competence in Context, 64 Fordham L. Rev. 1473 (1996); Gary B. Melton, Reforming the law: The impact of child development research (New York: Guilford Press, 1987); Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Civil Litigation, 64 Fordham L. Rev. 1571 (1996); Barbara Bennett Wood-house, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 Cardozo L. Rev. 1747 (1993).
See the classic description provided by philosopher Isaiah Berlin, Two concepts of liberty: An inaugural lecture delivered before the University of Oxford on 31 October 1958 (Oxford, England: Clarendon Press, 1958). See also Jeremy Waldron, Introduction to Theories of Rights, 1, 11 (Jeremy Waldron, Ed. New York: New York University Press, 1984).
See Indivisibility and Interdependence of Economic, Social, Cultural, Civil and Political Rights, G.A. Res. 44/130, U.N. GAOR, 44th Sess., Supp. No. 49, at 209, U.N. Doc. A/Res/44/130 (1989) (accepted Dec. 15, 1989); Barbara Stark, Economic Rights in the United States and International Human Rights Law: Toward an “Entirely New Strategy,” 44 Hastings L. J. 79 (1992).
See Lee E. Teitelbaum, Foreword: The Meanings of Rights of Children, 10 New Mexico L. Rev. 235 (1980), differentiating between an integrative view of rights, which emphasizes a progressive theory focusing on children’s needs for integration into the community of persons, and the autonomous view of rights, which emphasizes a libertarian theory focusing on individual choice. Dean Teitelbaum sees both elements reflected in the developing jurisprudence of children’s rights.
See Barbara Bennett Woodhouse, Of Bonding Babies, and Burning Buildings: Discerning Parenthood in Irrational Action, 81 Va. L. Rev. 2493 (1995), commenting on Robert Scott & Elizabeth Scott, Parents as Fiduciaries, 81 Va. L. Rev. 2401 (1995).
For comprehensive discussions of the historical development of children’s law in America, see Mary Ann Mason, From father’s property to children’s rights: The history of child custody in the United States (New York: Columbia University Press, 1994); Michael Grossberg, Governing the hearth: Law and family in nineteenth-century America (Chapel Hill: University of North Carolina Press, 1985).
See Janet L. Dolgin, Transforming Childhood: Apprenticeship in American Law, 31 New Eng. L. Rev. 1113, 1116 (1997).
In modern times, many subrules developed on issues like the minimum age of marriageability or for purchasing alcohol, often setting different benchmarks for males and females. See Craig v. Boren, 429 U.S. 190 (1976) (invalidating a state law that unconstitutionally discriminated based on sex, allowing females 18 and over to purchase beer but prohibiting males under 21 from doing so).
See generally, Special Issue: Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. (March 1966) (symposium issue devoted to children in the court system).
Plyler v. Doe, 457 U.S. 202 (1982), in which the Court struck down a Texas law prohibiting schools from enrolling illegal alien children, is often cited as the one chink in the armor of Supreme Court opinions denying that the Constitution confers positive rights on children because of their needs and vulnerability. Other cases, such as San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), refuse to recognize claims that poor children are constitutionally entitled to some basic level of education, or other such government programs.
See, for example, Edgewood Independent Schoool District v. Kirby, 777 S.W.2 391 (Supreme Court of Texas 1989), interpreting the Texas Constitution as conferring a right to an efficient system of free public education and holding that large differences in per capita expenditures between wealthy and poor districts violated children’s rights. The Texas court noted similar rulings in at least nine other states.
The National Council of Commissioners on Uniform State Laws has promulgated a number of model laws, ranging from the 1994 Uniform Adoption Act to the 1988 Uniform Status of Children of Assisted Conception Act, many of which have been enacted into law by a number of states. The American Law Institute issues “restatements” of various areas of state law such as contract or tort, which attempt to enhance consistency and uniformity from state to state. Recognizing the diversity of family law rules, it has titled its recent effort in the area of family law not a “restatement” but rather “Principles Governing the Dissolution of Marriage.”
See Susan Gluck Mezey, Children in Court: Public policymaking and federal court decisions (Albany, NY: SUNY Press, 1996), for a careful study of the impact of federal judicial decisions on children’s law. She analyzes decisions involving Aid to Families with Dependent Children (AFDC), Women, Infants, and Children Program (WIC), Head Start, and other federally funded programs.
115 S.Ct. 1624 (1995).
The words are those of former University of Chicago law professor and now Judge Richard Posner, from his opinion in Jackson v. City of Joliet, 715 F.2d 1200, 1204–04 (7th Cir. 1983).
See Adamson v. California, 332 U.S. 46 (1947) for a discussion of the doctrine we now call “incorporation,” which holds that the due process clause of the Fourteenth Amendment was intended to incorporate in its prohibitions against state violations of due process all or at least some of the protections enumerated in the Bill of Rights.
Marbury v. Madison, 5 U.S. 137(1803).
262 U.S. 390 (1923).
268 U.S. 510 (1925)
Many scholars point to the Ninth Amendment, which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” as authority that the framers recognized the existence of unenumerated rights.
Perhaps the most famous such critic is Robert H. Bork, whose nomination to the Supreme Court was defeated largely because of his critique of substantive due process theory. See Robert H. Bork, The tempting of America: The political seduction of the law (New York: Touchstone, 1990). Several members of the current Court have voiced pointed criticisms of substantive due process, most notably Justices Antonin Scalia and Clarence Thomas.
See Daniel A. Farber, William N. Eskridge, Jr., Philip P. Frickey, Constitutional law: Themes for the constitution’s third century, 404 (St. Paul, MN: West, 1993). Buck v. Bell, 274U.S. 200 (1927) was the low watermark of Justice Oliver Wendell Holmes, Jr.’s career, and illustrates how, without some theory of unenumerated rights, legislatures would be free to enact laws that violate basic norms of humanity.
Skinner v. Oklahoma, 316 U.S. 535 (1942), overruled Buck v. Bell. Moore v. City of East Cleveland,431 U.S. 494 (1976), struck down a local zoning ordinance that prevented a grandmother from sharing her home with an orphaned grandson, finding that extended family relationships were protected by the Constitution.
The strong public reaction to Robert Bork’s rejection of privacy rights was evident in the statements of senators opposing his nomination. See “Taking a Stand on Confirmation: Senatorial Votes for and against Bork,” New York Times, Sec. B, p. 6, col. 1, October 6, 1987. See also results of polls on abortion rights, for example, “Poll majority of Americans back abortion rights,” Reuters North American Wire, Jan. 22, 1995; Mark Clements, “Results from national survey: Should Abortion Remain Legal?,” The Houston Chronicle, Parade, p. 4, May 17, 1992 (71% favor continuing right to legal abortion).
See Barbara Bennett Woodhouse, “Who Owns the Child? Meyer and Pierce and the Child as Property, 33 Wm. & Mary L. Rev. 995 (1992), in which I review the origins of constitutional doctrines of parental rights in historical and social context.
See also Peggy Cooper Davis, Neglected stories: The Constitution and family values (New York: Hill and Wang, 1997).
321 U.S. 158 (1944).
347 U.S. 483 (1954).
Susan Gluck Mezey has identified 53 children’s rights cases grounded on constitutional principles during the period from 1953 to 1993. Mezey, Children in court, at 17–27 See Susan Gluck Mezey, Children in Court: Public policymaking and federal court decisions (Albany, NY: SUNY Press, 1996), for a careful study of the impact of federal judicial decisions on children’s law. She analyzes decisions involving Aid to Families with Dependent Children (AFDC), Women, Infants, and Children Program (WIC), Head Start, and other federally funded programs.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), appeared to narrow the holding of Tinker, and cases like H.L. v. Matheson, 450 U.S. 398 (1981), and Hodgson v. Minnesota, 497 U.S. 417 (1990), qualified abortion rights by permitting states to enact parental notification requirements.
Mezey, Children in court, at 26 See Susan Gluck Mezey, Children in Court: Public policymaking and federal court decisions (Albany, NY: SUNY Press, 1996), for a careful study of the impact of federal judicial decisions on children’s law. She analyzes decisions involving Aid to Families with Dependent Children (AFDC), Women, Infants, and Children Program (WIC), Head Start, and other federally funded programs.
Martha Minow, in this perceptive essay, explores the failure of children’s rights advocates to mobilize Americans behind their movement, and advocates (with reservations) a more unifying focus on human rights as opposed to the fragmentary agendas for liberation, protection and redistribution pursued in the past. Martha Minow, What Ever Happened to Children’s Rights? 80 Minn. L. Rev. 267 (1995).
404 U.S. 71 (1971) (striking down a law giving preference to male relatives as trustees of a decedent’s estates).
The most recent Supreme Court case addressing gender discrimination against girls is United States v. Virginia, 518 U.S. 515 (1996), which held that Virginia Military Institute’s policy against admitting girls violated their equal protection clause rights.
For an assault on gender stereotypes, see Justice Ruth Bader Ginsburg’s cogent arguments in U.S. v. Virginia The most recent Supreme Court case addressing gender discrimination against girls is United States v. Virginia, 518 U.S. 515 (1996), which held that Virginia Military Institute’s policy against admitting girls violated their equal protection clause rights.
See U.S. v. Virginia The most recent Supreme Court case addressing gender discrimination against girls is United States v. Virginia, 518 U.S. 515 (1996), which held that Virginia Military Institute’s policy against admitting girls violated their equal protection clause rights, holding that any classification based on gender must be supported by an “exceedingly persuasive” justification, and Palmore v. Sidotti, 466 U.S. 429 (1984), holding that law may not give effect, directly or indirectly, to racial biases.
This motto is carved in the pediment of the United States Supreme Court in Washington, DC. Its emphasis is not on equal treatment but on equal justice.
Jane Maslow Cohen, Competitive and Cooperative Dependencies: The Case for Children, 81 Va. L. Rev. 2217 (1995).
See Barbara Bennett Woodhouse, Children’s Rights: The Destruction and Promise of Family, 1993 B.Y.U. L. Rev. 497 (1993).
See Michael Grossberg, A judgment for Solomon: The D’Hauteville case and legal experience in America (New York: Cambridge University Press, 1996) for a fascinating look at the emergence of the child’s best interest as a key determinant in custody cases. As Jean Koh Peters remarks, the question of the child’s best interest remains the ultimate legal standard governing most children’s cases, and it is incumbent on lawyers to develop a sophisticated and nuanced understanding of how to evaulaute children’s interests in a variety of contexts. See Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child-Protective Proceedings, 64 Fordham L. Rev. 1505, 1513 (1996).
See Ross, From Vulnerability to Voice, at 1579 See, for example, Randy Frances Kandel, Just Ask the Kid! Towards a Rule of Children’s Choice in Custody Determinations, 49 U. Miami L. Rev. 299 (1994); Peter Margulies, The Lawyer as Caregiver: Child Competence in Context, 64 Fordham L. Rev. 1473 (1996); Gary B. Melton, Reforming the law: The impact of child development research (New York: Guilford Press, 1987); Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Civil Litigation, 64 Fordham L. Rev. 1571 (1996); Barbara Bennett Wood-house, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 Cardozo L. Rev. 1747 (1993), which notes the many contexts in which children have no right to counsel or to file motions and present evidence in proceedings concerning them.
Hillary Rodham Clinton was one of the earliest to articulate this position. See Hillary Rodham, Children’s Rights: A Legal Perspective, in Children’s rights: Contemporary perspectives, 21 (Patricia A. Vardin & Ilene N. Brody, Eds., New York: Teachers College Press, 1979).
See Franklin Zimring, The changing legal world of adolescence, 89–96 (New York: Free Press, 1982) (arguing that the period of adolescence should be seen as a “learner’s permit” for the transition to adulthood).
See Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041 (1991); Reva B. Siegel, The Rule of Love: Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117 (1996).
See Michael R. Petit & Patrick A. Curtis, Child abuse and neglect: A look at the states, 1997 CWLA Stat Book, Tables 1.6 & 1.10 (Washington, DC: CWLA Press, 1997) (showing hundreds of thousands of verified reports annually of abuse).
489 U.S. 189 (1989).
503 U.S. 347 (1992).
See Scott & Scott, Parents as Fiduciaries, and Woodhouse, Of Babies, Bonding and Burning Buildings: Discerning Parenthood in Irrational Action See, for example, Randy Frances Kandel, Just Ask the Kid! Towards a Rule of Children’s Choice in Custody Determinations, 49 U. Miami L. Rev. 299 (1994); Peter Margulies, The Lawyer as Caregiver: Child Competence in Context, 64 Fordham L. Rev. 1473 (1996); Gary B. Melton, Reforming the law: The impact of child development research (New York: Guilford Press, 1987); Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Civil Litigation, 64 Fordham L. Rev. 1571 (1996); Barbara Bennett Wood-house, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 Cardozo L. Rev. 1747 (1993) for the crucial importance to children of a bonded parent.
Mary Ann Glendon, The transformation of family law: State, law and family in Western Europe and the United States, 147 (Chicago: University of Chicago Press, 1989).
See Mathews v. Eldridge, 424 U.S. 319 (1976), outlining a process of balancing the private interest affected by the action, the risk of erroneous deprivation from lack of a particular procedural protection, and the government’s interests in efficient procedures.
See Reno v. Flores, 113 S.Ct. 1439 (1993).
See Woodhouse, Hatching the Egg (see note 4); Akhil R. Amar & Daniel Widawsky, Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney, 105 Harv. L. Rev. 1359 (1992); Frances Olsen, The Myth of State Intervention in the Family, in Family matters: Readings in family lives and the law (M. Minow, Ed., New York: New Press, 1993).
See generally Fordham Symposium See generally, Special Issue: Ethical Issues in the Legal Representation of Children, 64 Fordham L. Rev. (March 1966) (symposium issue devoted to children in the court system).
See Flores v. Reno, 507 U.S. 292 (1993).
For discussions of these cases see Woodhouse, Out of Children’s Needs, Children’s Rights For a comprehensive international review of arguments in favor of rights for children, see The Ideologies of Children’s Rights 4 (Michael Freeman & Philip Veerman, Eds. Norwell, MA: Kluwer Academic, 1992). In the United States, various legal scholars have proposed theories of children’s rights, including Katherine Hunt Federle, Looking Ahead: An Empowerment Perspective on the Rights of Children, 68 Temple L. Rev. 1585 (1995); Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children’s Perspectives and the Law, 36 Ariz. L. Rev. 11 (1994); Martha Minow, Rights for the Next Generation: A Feminist Approach to Children’s Rights, 9 Harv. Women’s L. J. 1 (1986); Melinda A. Roberts, Parent and Child Conflict: Between Liberty and Responsibility, 10 N.D. J. L. Ethics & Pub Pol’y 485 (1996); Lee E. Teitelbaum, Foreword: The Meaning of Rights of Children, 10 N.M. L. Rev. 235 (1980); Barbara Bennett Woodhouse, “Out of Children’s Needs, Children’s Rights:” The Child’s Voice in Defining the Family, 8 B.Y.U. J. Pub. L. 321 (1994); and many others; Woodhouse, Of Bonding, Babies and Burning Buildings See Barbara Bennett Woodhouse, Of Bonding Babies, and Burning Buildings: Discerning Parenthood in Irrational Action, 81 Va. L. Rev. 2493 (1995), commenting on Robert Scott & Elizabeth Scott, Parents as Fiduciaries, 81 Va. L. Rev. 2401 (1995).
See Jean Koh Peters, Best Interest See Michael Grossberg, A judgment for Solomon: The D’Hauteville case and legal experience in America (New York: Cambridge University Press, 1996) for a fascinating look at the emergence of the child’s best interest as a key determinant in custody cases. As Jean Koh Peters remarks, the question of the child’s best interest remains the ultimate legal standard governing most children’s cases, and it is incumbent on lawyers to develop a sophisticated and nuanced understanding of how to evaulaute children’s interests in a variety of contexts. See Jean Koh Peters, The Roles and Content of Best Interest in Client-Directed Lawyering for Children in Child-Protective Proceedings, 64 Fordham L. Rev. 1505, 1513 (1996).
See Woodhouse, Hatching the Egg, at 1826 See, for example, Randy Frances Kandel, Just Ask the Kid! Towards a Rule of Children’s Choice in Custody Determinations, 49 U. Miami L. Rev. 299 (1994); Peter Margulies, The Lawyer as Caregiver: Child Competence in Context, 64 Fordham L. Rev. 1473 (1996); Gary B. Melton, Reforming the law: The impact of child development research (New York: Guilford Press, 1987); Catherine J. Ross, From Vulnerability to Voice: Appointing Counsel for Children in Civil Litigation, 64 Fordham L. Rev. 1571 (1996); Barbara Bennett Wood-house, Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 Cardozo L. Rev. 1747 (1993).
This statement appears in Smith v. Organization of Foster Families, 431 U.S. 816, 842–847 (1977).
See Susan A. Wolfson, Children’s Rights: The Theoretical Underpinning of the ‘Best Interest of the Child’,” and Joachim Wolf, The Concept of “Best Interest” in Ideologies of children’s rights (M. Freeman & P. Veerman, Eds., Norwell, MA: Kluwer Academic, 1992).
See Ideologies of Children’s Rights 4 (M. Freeman & P. Veerman, Eds., Norwell, MA: Kluwer Academic, 1992).
See United Nations Convention on the Rights of the Child, 20 Nov 89, G.A. Res. 44/25, 44 U.N. GAOR Supp. No. 49, U.N. Doc. A/44/736 (1989).
Children’s Convention, Article 4.
See Children’s rights in America: U.N. Convention on the Rights of the Child compared with United States law 95–95, 337 (Cynthia P. Cohen & Howard A. Davidson, Eds., Chicago: American Bar Association Center on Children and the Law, 1990).
See also Susan Kilbourne, U.S. Failure to Ratify the U.N. Convention on the Rights of the Child: Playing Politics with Children’s Right, 6 Transnat’l & Contemp. Probs. 437 (1996).
For a discussion of the PRRA, see Barbara Bennett Woodhouse, A Public Role in the Private Family: The Parental Rights and Responsibilities Act and the Politics of Child Protection and Education, 57 Ohio St. L. J. 393 (1996).
An article by article analysis of the convention appeared, as of June 23, 1997, on a home schooling web page at http://www.learnathome.com/specrptsl.html. A user who locates the learnathome page, for example, will find quick “links” to an extensive array of web pages also publishing similar opposition materials, including the Family Research Council, http://www.frc.org/faq/faq25.html. A web search for references to the United Nations Convention on the Rights of the Child connects the searcher to sources as diverse as a network for information on organizations supporting the convention at http://193.156.14/webpub/crhome/crc.htm and a network called the Citizen Internet Empowerment Coalition advocating “Death to the New World Odor”(sic) and pointing the searcher to the web page of The New American at http://www.jbs.Org/vol2nol4.htn#child. The New American, typical of opposition websites, asks “Does the State Own Your Child?” and describes the convention as an assault on federalism and parents rights.
This statement is taken from Douglas Phillips, “The Legal Impact of the United Nations Convention on the Rights of the Child,” published by The National Center for Home Education (on file with the author).
Barbara J. Na’ick, Implications of the United States Ratification of the United Nations Convention on the Rights of the Child: Civil Rights, the Constitution, and the Family, 42 Cle. St. L. Rev. 675 (1994) (expressing doubts as to compatibility with US legal traditions).
See Barbara Bennett Woodhouse, “Who Owns the Child?” Meyer and Pierce and the Child as Property, 33 Wm. & Mary L. Rev 995 (1992) (reviewing history of opposition to children’s rights).
Constitution of the Republic of South Africa 1996, Art. 28.
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2001 Springer Science+Business Media New York
About this chapter
Cite this chapter
Woodhouse, B.B. (2001). Children’s Rights. In: White, S.O. (eds) Handbook of Youth and Justice. The Plenum Series in Crime and Justice. Springer, Boston, MA. https://doi.org/10.1007/978-1-4615-1289-9_20
Download citation
DOI: https://doi.org/10.1007/978-1-4615-1289-9_20
Publisher Name: Springer, Boston, MA
Print ISBN: 978-1-4613-5480-2
Online ISBN: 978-1-4615-1289-9
eBook Packages: Springer Book Archive