Peggy Cooper Davis has proposed that human dignity shoulders the burden of managing--if not resolving--the complex relationship of the state to the family as an entity and to the individual members of that entity, in particular the child. (1) She is not alone in asking dignity to do this hard work. Supreme Court Justice Anthony Kennedy has placed dignity at the center of our understanding of the state's role in intimate relationships. (2) Defining dignity is difficult, however, and the specific "smell test" for its use that Davis proposes reaches beyond the "histories and traditions" that have identified a dignity right as fundamental and worthy of protection to consider two additional circumstances. (3) One is the development of international human rights standards since the end of World War II, and the second is to consider under what conditions the victim of an affront to their dignity--and the rest of us--finds that affront intolerable. The verifying source of this test is the resistance to this treatment through counterdemonstration and reasoned protest. (4) What complicates the analysis in the family context is the competing dignity rights of the individual members of the family and the family as an entity entitled to its own dignitary respect.
Nowhere is this complexity more clearly identified than in the Convention on the Rights of the Child (CRC), the global community's statement of commitment to nurturing and supporting the best interests of the child. (5) Those interests are served, first and foremost, by respecting and protecting the family:
[T]he family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community... [and] the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding. (6) After situating the child's best interests firmly in the family, the Convention then compels the state and its institutions to protect the child and her family against discrimination, ensure that state action to protect the child's best interests be taken only after consideration of the role of the child's parents, and to support the economic, social, and cultural rights of those children, as enumerated in subsequent articles of the Convention. (7) The child is not, however, only a creature of the family or the state. Rather, the child is an emerging individual with perspectives, ideas, interests, and beliefs, all worthy of support and protection. (8) Davis refines our conception of human dignity by employing international human rights standards to augment the American constitutional meaning of the term. (9) She implicitly (and in her conclusion perhaps explicitly) proposes what the CRC has already recognized: that the tensions inherent in the "child-family-state" triangle can be mitigated by the provision of positive obligations by the state. (10) That is, families cannot be the nurturing protective site where children grow, thrive, and develop to their full capacities without affirmative and sustained assistance from the state in the many facets of the child's life: education, health, food, and shelter at a minimum. The "thoughtful and simultaneous respect" that Davis advances to manage these tensions is, (11) in many ways, a call for the state to take an affirmative role in creating and sustaining the object of this colloquium: flourishing families. Yet to get there requires not only difficult conversations about supporting families, but also renewed attention to constitutional rights to address significant and growing inequity.
Let's start with having the conversation. In her wonderful book, Failure to Flourish, Clare Huntington identifies how different moral beliefs about the state's role in family life impact our ability to talk across those differences to support families. (12) The competing moral systems employ strict-father and nurturing-parent metaphors to ascertain the appropriate role of government in family life. (13) In the strict-father system, the government's role is to promote morality, self-discipline, and self-reliance, while in the nurturing-parent system the state promotes fairness, self-fulfillment, and helping those in need. (14) Huntington notes these moral systems are hardened by our tendency to discount factual information that is not consistent with our beliefs (15) and, as Davis pointed out many years ago, our tendency not to change our minds but to maintain the status quo. (16) These moral system metaphors analogize, if imperfectly, to negative and positive rights theories: the protection from government intervention rather than promotion of government support.
Huntington has contributed to having conversations that bridge such a serious divide in many ways--including identifying why it is so hard to have the conversations (17)--but I want to focus on her effort to debunk the paradigm of the autonomous family and to surface, from what has been termed...