Introduction 1009 I. The Concept of Human Dignity 1010 II. Case Illustrations 1013 A. Meyer v. Nebraska and Pierce 1014 v. Society of Sisters. Families, Education, and Economic Diversity B. Wisconsin v. Yoder. Open Opportunity and Cultural Diversity 1016 C. DeShaney v. Winnebago County Department of Social Services and Castle Rock v. Gonzales. The Tension Between Public Safety and Family Privacy 1018 Conclusion 1020 INTRODUCTION
As a city, we are in some way responsible for each child in our midst. The obligation and opportunity to stand in loco parentis--in the place of a parent--is applicable to state and local governments to some highly contested and complicated extent. The contests and complexities are revealed in our family law jurisprudence, for although the field of family law is often belittled or trivialized, it is in family jurisprudence that a government's obligations to its people are perhaps most tellingly tested. In what follows, 1 will explore the reach and limits of those obligations.
First, I will discuss the concept of human dignity and how it relates--or should relate--to making judgments about what a government owes to its child citizens. I will draw on constitutional theories that have come to prominence since the World Wars and caused governments around the world to address more directly the positive duties states may owe to their people and that their people may owe to one another. These theories are instructive, despite the ironic fact that they simultaneously enhance our sense of duty to children and our duty of restraint against invading their families' autonomy.
Having laid a foundation of dignitary principles, I will discuss a set of family law cases that have tested the limits of governments' responsibilities to children and to their families. I will first discuss the old chestnuts, Meyer v. Nebraska (1) and Pierce v. Society of Sisters, (2) two Supreme Court cases from the 1920s that laid the groundwork for the still bitterly contested doctrine of substantive due process. Next, I will discuss Wisconsin v. Yoder, (3) the 1972 Supreme Court case in which Amish families challenged a requirement that they send their children to school until the age of sixteen. Finally, I will discuss DeShaney v. Winnebago County Department of Social Servicek (4) and Castle Rock v. Gonzales, (5) two cases in which the Supreme Court found that state and local governments could not be held accountable for lapses in their efforts to protect families and children. I will conclude with a comment on the usefulness of the concept of human dignity in calibrating governments' and families' competing authority over, and complementary duty towards, their children.
THE CONCEPT OF HUMAN DIGNITY
I set out my understanding of human dignity rather circuitously. I start with a definition of fundamental right, as that term is understood in United States constitutional law. I then link the notion of fundamental right and the notion of human right. Only then will I be in a position to describe how I understand human dignity in the context of American constitutional and political thought.
The Supreme Court gives special protection to certain rights, regardless of whether they are mentioned in our Constitution's text, because these rights are deemed to be basic components of human freedom. (6) Histories and traditions of recognizing a right that is fundamental in this way appear to be safe indicators that a right is fundamental. (7) However, there are reasons to prefer a test that first asks whether the exercise of the right is socially benign, and if it is, then asks whether the suppression of that right is socially justifiable. (8) Careful balancing of calls for order and for liberty can seem more defensible than reference to what we have customarily done. (9)
As the world has grown smaller, lawmakers in the United States and elsewhere have increasingly looked beyond national borders for guidance in determining what rights are so fundamental that they should be protected by national and international law. (10) At the same time, transnational bodies have undertaken codification of individual and collective rights that are broadly understood to be fundamental. (11) In transnational contexts, one may speak not just of the civil rights that should be guaranteed by a polity to its members, but also more generally of human rights that should be guaranteed to all. Since World War II, as international rights codifications have proliferated, the use of the term human rights has become more common in legal discourse and is now commonly associated with the concept of human dignity. (12)
In this same post World War II period, the concept of human dignity has come to carry new associations: those who drafted new constitutions in response to acts and political arrangements that were widely regarded as atrocities identified respect for human dignity as the principle those atrocities had violated. Most notably, Germany after the Holocaust and South Africa after apartheid built new constitutions with cornerstones of respect for human dignity. (13) This, I argue, was a key development toward understanding human dignity through protest against its denial.
Contemporary scholars point out that while dignity was once a term referencing the accouterments of noble rank or status, the term human dignity is now understood in legal and moral discourse to reference the properties or entitlements of "human beings as human beings, not dependent on any particular additional status." (14) To affront human dignity is, then, to treat a human being or a group of human beings without regard for their entitlements as members of the human species. In a world grown increasingly suspicious of hierarchy, it is, to borrow a religious concept, to treat them not as if they were a little lower than angels, but as if they were something lower still. (15)
All that I have said invites the following question: how do we decide what behavior is an affront to the dignity of human beings? I propose that we decide what affronts human dignity by reference to two kinds of human aversion. First, affronts to human dignity are (or would be in a condition of freedom) intolerable to the victim or subject. Second, they are intolerable in the consensus judgment of observers. They are acts that human beings will neither endure without coercion nor tolerate without general approbation.
While this appears to be a smell test--"I know it when I see it"--it is one of a particular and not entirely subjective kind. It is a collective smell test verified in two important ways: (1) by resistance and counterdemonstration on the part of those subjected to the practice, and (2) by reasoned protest, both by those subjected to the practice and by others.
The rights-seeking process of resistance, counterdemonstration, and reasoned protest plays out on a micro level whenever an infringement or denial of human dignity is challenged on constitutional grounds. Cases involving children and their families are special in that they often call for reconciliation of the different, sometimes competing dignitary or constitutional rights of various family members--often those of children and those of their parents.