The Current U.S. Constitution
As I've written about in an earlier post, the United States Constitution, when it was written and when it has been amended over the years has been drafted and ratified by populations with diverging values. In addition, immigrant populations who have become United States citizens have had additional diverging values. This has meant that the terms used in the document have had different meanings, sometimes wildly different ones, to different people and to different interpreters of the Constitution.
One term that is relevant to rights of children is the way the way the document is drafted around rights of "person" and rights of "citizen". The starkest contrast in the meaning of this view is this:
(a) Antonin Scalia, a sitting Supreme Court Justice, who defines the term "person" to exclude women. He has said it excludes women altogether because of his view that "Nobody ever thought that that's what it meant. Nobody ever voted for that." In other statements he has said that it does apply in some contexts, that "you can't . . . give [women] higher criminal sentences." If women are not "persons" or "citizens", are men?
(b) John Dickinson, one of the drafters and ratifiers of the Constitution, who considered it to mean "he" or "she". He also was the chair of the committee that prepared the initial draft of the Articles of Confederation, which later became the frame for the first drafts of the Constitution, and in which he used the term "person" throughout, except for a couple references to mustering armies (by time it was converted to the first drafts of the Constitution, the word "man" was completely gone from the document). This was a contrast with the Declaration of Independence, which Dickinson and others refused to sign, built around a statement that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" and with the contemporaneous French Constitution, literally called "Rights of Man and the Citizen".
(One aside: Some people have argued that the use of the term "man" in the context of the Declaration of Independence is intended to cover women as well. Further, because the English language doesn't currently have a pronoun that applies to men and women in a non-gender-specific the way the word person does, the use of the words "he" or "she" or "her" or "him" have also been argued to cover both biological sexes or genders. The French Constitution basis in "rights of man" is still being used today by its constitutional court to entitle men to pay lower tax rates than women, however.)
All of the rights of person and citizen in the United States Constitution can be readily applied to both men and women. The Supreme Court did not apply them to children, however, until the 1966 case, In re Gault. Many of the rights could be applied to children, if in limited contexts. A right "peacably to assemble"? A "right to petition the Government for a redress of grievances?" A "right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"? A "right not to be compelled to be a witness against himself"? The Second Amendment is perhaps the most challenging of these to consider. It states that "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Should a five-year-old have the right to keep and bear a gun? It is a tradition in some parts of the United States to give small children real guns. While federal law prohibits selling a gun to someone under the age of 18, adults can give guns to children. Regulations on how children access firearms and who can be held negligent for a child’s use of a gun are left to the states. There are also companies in the United States that market guns specifically made for children.
What is an open question, however, is how the Constitution regards the fact children cannot meet their own needs and who is responsible for meeting their needs. There is not much about responsibilities in the Constitution; the discussion focuses on rights and among those rights the needs of children, such as the need to be fed, clothed, sheltered, to have their development supported and not traumatized, etc. are not included.
The developmental distinction between children and adults is not recognized except perhaps implicitly in the Twenty-Sixth Amendment, which says "The rights of citizens of the United States, who are eighteen years of age or older to vote shall not be denied or abridged by the United sates or by any State on account of age." This seems to say children under the age of eighteen are citizens (and also persons), but can be discriminated against in the right to vote. While some would say this means they can be discriminated against in other rights, others might say this implies that they cannot be discriminated against in other rights, including the Fourteenth Amendment right as a person not to be denied the "equal protection of the laws".
The developmental distinction between children and adults is thus not really recognized in the Constitution, which could lead one to conclude the Constitution was not intended to deal with children's rights at all, only the rights of adults. Moreover, the fact many of the rights specifically concern an individual's rights vis-a-vis government, but not against other private citizens on an individual basis, mean that application of these concepts in the context of the child vis-a-vis parents is awkward, even if in many contexts such concepts make sense, if for no other reason but to support the child's development. The awkwardness of the language when used in this context does support a conclusion that the Constitution was not intended to deal with children's rights at all, except perhaps with regard to a child's rights vis-a-vis the state (or other citizens where applicable) in the same contexts as an adult's.
The reasons the original framers of the Constitution did not deal with this issue seem likely based in very different views the cultures had about children. A significant contrast can be seen between:
(a) Thomas Jefferson, who had six children with Sally Hemmings, bound in slavery to him, and who never acknowledged those children as his own. The children lived at his estate as slaves and were trained domestic servants and artisans. He did free them when they came of age but still did not acknowledge them. We don't know if he saw these children as having rights to have their needs met and who he thought was responsible for meeting those needs. The fact he did not acknowledge them suggests he did not see himself as the father having any responsibility for meeting their needs.
(b) Benjamin Franklin, who, at about the age of 24, had a child with a unidentified woman he was not married to, who acknowledged the child and raised him. Then when the child, William, later had a child himself with a woman he was not married to and the child was placed in foster care and Benjamin Franklin later learned about the child, Benjamin Franklin took custody of the boy, William Temple who was living in France and about the age of four at the time, and raised him as well, this time as a widower without his wife's involvement. He thus seems to have seen these children as having rights to have their needs met and to have parents meet them. We don't know if Franklin thought these children had rights to have their needs met by their mothers as much as by their fathers; we don't know anything about the mothers of William and William Temple; historians speculate that they were prostitutes. It is possible that Benjamin Franklin thought children had rights to have their needs met first by fathers and second by mothers; or perhaps he thought that a prostitute was incapable by definition of meeting a child's needs. (If the latter it is curious he did not also see a purchaser of sex as similarly incapable.) The fact William Temple was put in foster care suggests the mother was not capable of meeting his needs. While William paid some of the child's expenses he did not assume personal responsibility for meeting the child's needs.
Another issue that the framers faced that doesn't exist anymore is that paternity was not provable . This means that the child's rights, vis-a-vis the father anyway, could not be established except through legal presumptions (such as the presumption that a married man was the father of any children his wife gave birth to).
How Might the United States Constitution or Individual State Constitutions Be Modified Today to Address the Issue?
(A) First, I'd like to illustrate at what some foreign governments and the United Nations have done or are doing and whether they work well.
The 1992 United Nations Convention on the Rights of the Child, provides the following language on this issue:
"1. [States/Parties] shall use their best efforts to ensure recognition of the principle that both parents
have common responsibilities for the upbringing and development of the child. Parents or, as the case
may be, legal guardians, have the primary responsibility for the upbringing and development of the
child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention,
[States/Parties] shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and
services for the care of children.
3. [States/Parties] shall take all appropriate measures to ensure that children of working parents have
the right to benefit from child-care services and facilities for which they are eligible.
Pros/Cons: The UN Convention was written and ratified after paternity became provable in 1970 but while it was still relatively expensive to do so. Paternity now costs as little as $150 to establish, with the price expected to drop even further in the near future. While the ideas in the UN Convention make sense, their vagueness about who is to meet these needs of the child is troublesome. The vagueness likely came from (a) the UN Convention being intended to be a general set of guidelines, leaving it to specific countries how they wanted to implement them and (b) because of the difficulty of proving paternity, and the fact meeting these standards is difficult for mothers to do when the father is not sharing in the responsibility, thus requiring a socialized responsibility to fill the gap.
The United Kingdom has a concept of parental responsibility in its legal system. In simplified form, as it exists in England and Wales, this concept states that:
1. "Parental responsibility" is a set of legal rights and responsibilities.
2. All mothers have parental responsibility from the birth of the child. Only the following fathers do:
- a father who his married to the mother;
- a father who is listed on the birth certificate
- a father who has applied for it and (a) obtained a parental responsibility agreement with the mother or (b) obtained a parental responsibility order from a court.
- providing a home for the child
- protecting and maintaining the child
- disciplining the child
- choosing and providing for the child’s education
- agreeing to the child’s medical treatment
- naming the child and agreeing to any change of name
- looking after the child’s property
4. Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.
In the United States, the term "parental responsibility" has a different meaning. It is the right of third parties, including the state in a criminal prosecution, to sue the parents for an act of the child.
Pros/Cons: The UK method is good in how it lays out in simple and clear terms what the responsibilities are. It is curious how it does not require parental responsibility of all biological fathers, only those who are married or who assert it. Also, a married father may not be the biological father so this seems to be an awkward assignment of responsibility that doesn't focus on the child's needs. Finally, there is no clear allocation of the responsibility between the parents. In practice, even with a father who does hold parental responsibility, this can means that a father assumes the mother is meeting all the parental responsibility even if she has not clearly consented to this role. This then leaves the child at risk. This risk would be even greater with an unmarried father who did not assert parental responsibility. While some single parents may readily be able to meet the parental responsibility standard on their own, if one takes a child-centric approach, you would want the single parent to have to consent to assuming full parental responsibility before the other biological parent is relieved of it.
(B) How might the United States address this issue?
One possibility is a "Rights of the Child and Child Responsibility" Amendment to a state constitution or the United States Constitution that draws from these sources but that avoids some of their problems. Here's what it might look like:
Rights of the Child and Child Responsibility1. A child, from the moment of birth until the age of majority, has the right to have the child's needs met by the child's biological parents. The biological parents hold several liability for meeting child responsibility obligations.
(a) If a biological parent obtains uncoerced written consent from the other biological parent that that parent assumes part of all of the child responsibility, then such responsibility no longer exists with that biological parent, but only to the extent assumed by the other parent.(b) If an adoptive parent or parents obtain uncoerced written consent from both biological parents to assume all of the child responsibility, then the adoptive parent or parents assume all of the child responsibility. If an adoptive parent obtains uncoerced written consent from one biological parent to assume part or all of the child responsibility, then such adoptive parent holds such responsibility, in several liability, with the other biological parent and with the consenting biological parent (to the extent the adoptive parent has not assumed all of the responsibility of the consenting biological parent).
2. Child responsibility includes:
- meeting physical needs of the child, including:
- providing a home for the child
- protecting the child
- feeding the child
- clothing the child
- obtaining health care for the child in case of disease or injury and for prevention of disease or injury
- meeting emotional needs of the child
- recognizing the child as a distinct person from the parent
- recognizing the child's dependence
- meeting developmental needs of the child
- obtaining education for the child
- disciplining the child's behavior
- supporting the child's development from dependence to adulthood
3. The state may appoint a guardian ad litem to enforce the rights of the child and the child responsibility held by one or more parents.
What do you think of this idea? Any comments much appreciated.