children's civil rights
phorwitz at hotmail.com
Wed Apr 23 14:32:37 PDT 2008
I find the comparison to the evolution of African-Americans' legal status somewhat ill-fitting. That journey has not only been away from slavery but toward genuine autonomy, free of both obviously cruel state actions and state actions that might be characterized, however perversely, as being in the best interests of African-Americans, given white lawmakers' perceptions of their reduced capacities. (I should make clear that I am discussing genuinely intrusive and demeaning paternalistic laws here; I'm not making some obscure comment one way or another about affirmative action policies.) The state, on the other hand, may be moving toward genuine bodily integrity for children, but it is not moving towards absolute autonomy for them, since it (quite reasonably) believes that they in fact do have limited decision-making capacity and that, however one might argue about that capacity at the margins, the risks of harm to them stemming from imbalances of power justify broad-stroke assumptions that certain actions involving children are simply wrong (again, quite reasonably).
However, I'm not much convinced that this means we're not talking about "civil rights." I would have thought it fairly uncontroversial that laws dealing with, say, the mentally disabled are generally categorized as "civil rights, although some of them are freedom-enhancing and some are paternalistic, in a non-pejorative sense of the word. Perhaps Earl believes that only those laws involving the mentally disabled that are freedom-enhancing are "civil rights," not those laws that also protect their interests. I can see that distinction, but I think most people would be inclined to group them together under the general rubric of civil rights -- not least because, as I think Marci is suggesting, protecting the civil rights of persons who labor under various incapacities almost necessarily involves both sorts of legal regime.
I think the closer analogy is thus toward something like the law's evolving treatment of the mentally disabled, or whatever appropriate phrase one wants to substitute. I would note that in this area, too, there are ongoing debates about how much and in what circumstances the law should lean toward real decision-making autonomy rather than a regime of paternalism. My sense is that the same question has been nibbling around the edges of today's listserv conversation about children: should we treat the protection of children as an unalloyed good in every circumstance, or are there times when the law underestimates the decisional capacity of children and thus errs by "protecting" them from conduct of different kinds? This is, I assume, at least part of the argument about age-of-consent laws and the criminalization of sexual conduct between underaged or nearly underaged individuals -- particularly because such laws are often deployed to regulate same-sex sexuality or interracial sexuality more severely than they are used to regulate heterosexual and intraracial sexuality. I think questions about the balance between paternalism and decisional autonomy in laws concerning children are perfectly valid and can't be shrugged off, although I hasten to add that this does not mean I am questioning the idea that certain kinds of conduct towards children are and should be treated as both moral and legal wrongs.
University of Alabama School of Law
From: Hamilton02 at aol.comDate: Wed, 23 Apr 2008 17:04:54 -0400Subject: Re: children's civil rightsTo: emaltz at camden.rutgers.edu; dcruz at law.usc.edu; conlawprof-bounces at lists.ucla.edu; CONLAWPROF at lists.ucla.edu
It's not quite that simple-- the state is asserting the child's interest. The standard is the best interest of the child. If the child were able to protect herself adequately, child protective services would not be necessary. The state is performing the protective function necessary to protect the child's bodily (and other) integrity. If the child were mere property, as children have been in the past, we would not have child protection services. We'd just have parental rights. But we have broad societal consensus that physical and sexual abuse of a child is unacceptable, even when perpetrated by the parent. That indicates that the child has achieved a status that is constitutionally distinctive. It is much like the evolution of status for African-Americans from slavery to personhood.
In a message dated 4/23/2008 4:44:40 P.M. Eastern Daylight Time, emaltz at camden.rutgers.edu writes:
If we were constructing language from scratch, we could define anything as a "civil right." But we are not starting from scratch. in most contexts, when we speak about civil rights, we are talking about either the right of a person to make a choice free from interference by the state (First Amendment) or to have his choice supercede the choice of others (for example, in the employment discrimination context).Here the state is asserting something quite different--that it is the state whose decision matters, rather than that of the underage child or the parent.
Need a new ride? Check out the largest site for U.S. used car listings at AOL Autos.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof