Martin Guggenheim, Ratify the U.n. Convention on the Rights of the Child, but Don't Expect Any Miracles

CitationVol. 20 No. 1
Publication year2006


Martin Guggenheim*


Shortly after my book What's Wrong with Children's Rights1was published, I was pleased to receive a phone call from John Witte, Jr., inviting me to participate in this important conference. Professor Witte must have realized, of course, that it would be impossible for me to refuse an invitation to participate in a conference entitled "What's Wrong with Rights for Children?" It is a privilege for me to be a part of this effort to explore systematically the obstacles to, and potential benefits from, the U.S. ratification of the U.N.

Convention on the Rights of the Child.2

The great majority of invitees to this conference are well known supporters of the Convention and have long urged the United States to ratify it. I suspect that I was invited as a potential opponent because I am somewhat skeptical about the benefits of conferring rights upon children. I welcome this opportunity to clarify my belief that making children rights-holders is insufficient to ensure justice for children. But, to the extent I was supposed to express opposition to U.S. ratification of the Convention, I am afraid that I will disappoint. I am pleased to join those who seek to have this country join the nations of the world and formally ratify the strongest expression of children's rights ever formally adopted.

Before discussing my particular hopes for how the Convention could lead to some actual good for children, I will begin by indicating what, at least for me, is wrong with children's rights.



Although I have plenty to say on the subject, my purpose in this article is to advance only one quality of what is wrong with rights for children-that "rights" for children in the United States tend to be so malleable that they almost lack any content. Indeed, even though the Supreme Court prominently announced nearly forty years ago that children have fundamental constitutional rights,3many terrible things happen to children in the United States today, and the Constitution has not proven to be effective in addressing these evils. Stated even more provocatively, more than a generation after the Court explicitly stated that children have "rights," children, in a variety of ways, are worse off today than ever before.

A. The Allure of Rights

Children are inherently dependent, at least for significant periods of their childhood. Their status in almost every society is determined, monitored, and enforced by adults. Children lack political power, and the treatment they receive is, ultimately, little more than a reflection of the will of adults. Into this set of truisms comes the call for "rights" belonging to children. The hope for the use of this term is that children may obtain some trump cards with which to limit what adults do to them. In recent years, in many parts of the world, including the United States, "children's rights" has been widely advanced as the central part of an agenda to improve the plight of children.

The growth of professional interest in this subject in the United States can be measured by the frequency with which scholars talk about children's rights. From 1973 through 1989, only 113 articles were published in legal literature identified by Westlaw as containing both the phrase "children's rights" and the phrase "constitutional rights." Between 1990 and 2005, 1,048 articles have been published that contain both of these phrases.4

This exponential growth in the interest in children's rights is partly a reflection of how many rights children are said to possess in the United States. Indeed, it is difficult to make the case that children in the United States lack rights. American children possess an abundance of rights. The largest number and kinds of rights they possess are statutory in nature and commonly enacted by state and local legislatures. But even if we focus solely on rights recognized by the Supreme Court of the United States, children enjoy almost all of the rights that adults are guaranteed by the Constitution (albeit with qualifications that, as it turns out, sometimes swallow the rule).

As the Supreme Court famously declared, "[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority."5The list of constitutional rights possessed by American children is long and familiar. Children enjoy all of the freedoms in the First Amendment, including freedom of speech,6press,7religion,8and assembly.9

They also have Fourth Amendment protections against unreasonable searches and seizures.10

Juveniles accused in delinquency proceedings do not possess the Fifth Amendment right to indictment by a grand jury,11but they are protected by the double jeopardy clause.12Most importantly, perhaps, they are protected by the Fifth Amendment's right not to be compelled to be a witness against themselves13and, more generally, are guaranteed the protection of due process of law.14Although accused delinquents are not guaranteed the Sixth Amendment rights to a public or jury trial,15they are afforded most of the protections secured by that amendment. In particular, they are entitled to free court-assigned counsel if they and their family are unable to afford to retain an attorney;16they also are entitled to notice of the charges lodged against them and to confront and cross-examine adverse witnesses.17Additionally, juveniles are protected by the Eighth Amendment's prohibition of state infliction of cruel and unusual punishment18even though they lack the right to bail.19

Minors also enjoy miscellaneous rights protected by the Due Process Clause of the Fourteenth Amendment, including the right to be free from a parental veto when choosing to terminate a pregnancy,20and the guarantee that their delinquency adjudication be based on proof of guilt beyond a reasonable doubt.21

I do not mean to suggest that one can glean very much about the true meaning of children's rights from this list; quite to the contrary. The Supreme Court's version of declaring that the devil is in the details came in its observation in In re Gault22-the most important children's rights case ever decided by the Court-that "whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."23Therefore, when courts are asked to enforce or apply constitutional rights that children supposedly already possess, they are remarkably free to decide how comparable the adult version of rights ought to be when applied to children. Much of the jurisprudence of children's rights since Gault has involved the Supreme Court making plain just how much room exists for courts to conclude in any given context that the "precise impact" of constitutional rights for children is very small.

Thus, one year after Gault, the Court upheld a state law that limited minors' access to sexually explicit, non-pornographic material, even while acknowledging that such a law would have been unconstitutional if applied to adults.24This is consistent with the Court's long-expressed view that "[t]he state's authority over children's activities is broader than over like actions of adults."25We should not be too surprised then that the Court would be willing to restrict children's right to access such material (even when children can be said to have First Amendment rights in the first place). Adults desirous of access to material considered inappropriate for children are more than willing to restrict a minor's rights to these materials in order to prevent other adults from applying too restrictive a standard of what is acceptable for even adults to view. Justice Frankfurter referred to this phenomenon as avoiding the need to "burn the house to roast the pig."26

There are, of course, many other examples of differential application of rights for children and for adults, even when both theoretically have the same constitutional rights. Though children technically possess the same rights as adults, the protections those supposed "rights" afford prove to be dramatically different from those enjoyed by adults. Consider, for example, non-emergency nocturnal curfews applied to persons under seventeen years of age. When examining the legitimacy of such laws, one begins with the understanding that they would plainly be unconstitutional as applied to adults. Technically, both adults and children enjoy the same constitutional rights implicated by curfews, which include First Amendment rights as well as other unenumerated rights to move about freely in an open society.27

When applying constitutional rights, courts have considerable leeway in determining whether the rights at stake in a particular case are to be considered "fundamental" or less weighty. One of several ways in which courts exercise their wide latitude in deciding cases involving children's constitutional rights is by ruling that the child's interest in the right is less weighty than an adult's interest in the same right. On other occasions, courts have placed emphasis on the state and concluded that its interests weighed more heavily than the individual's when the case was one involving children rather than adults. Thus, when courts are called upon to determine the constitutionality of patently unconstitutional curfew laws (if enforced against adults), courts are free to determine how much weight to give to the state's interest in enacting the restriction in the first place. Further, courts have equally broad authority to determine how important the particular right in question is as applied to children, particularly in light of the state's interest in protecting children.

One of the most basic undecided questions is what level of scrutiny to apply when hearing challenges to these laws. As court observers have long known, the level of scrutiny applied by a court is a...

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