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...can exercise free choice. This Article argues for positive right to protection for children, rooted in dignity, by probing the problematic nature of the positive/negative rights duality and exploring alternate legal approaches to protecting children's rights in both international and comparative law. The adoption of positive rights for children would help assure adequate protection, which the current American legal regime, as typified by the case DeShaney v. Winnebago County Department of Social Services, fails to do.
I. INTRODUCTION
Children are an anomaly in the liberal legal order. Conceptualizations that work in other areas of human rights break down in the context of children. Children defy the conventional view of rights as implying fully rational, autonomous individuals who can exercise free choice and require freedom from governmental interference. Lacking fully developed rational capabilities, children are dependent "incompetents" by definition. Furthermore, unlike the term "individual," the term "child" does not stand alone from all others, but necessarily implies a relationship.
The founders of liberal rights theory perceived children to be outside the scope of their philosophies. John Stuart Mill (1) excluded children from his conception of liberty. He wrote:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children ... Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury ... Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. (2)
Thus, interestingly, while children do not have a negative claim to liberty according to Mill, they have a positive claim for protection. Mill highlights a recurring tension between liberation and protection in the debates around children's rights.
Locke, likewise, held children to be an exception to his general proposition that "all men by nature are equal." (3) For Locke, rights flow from the human capacity for reason, and the exercise of reason qualifies the individual for the exercise of freedom. (4) He viewed children as not fully rational and saw the human mind at birth as a "white [p]aper, void of all [c]haracters, without any [i]deas." (5) As children were not rational individuals who could freely give their consent to civil government, children could not be parties to the social contract or rights-holding citizens of the state. (6) Children's incomplete reason not only disqualified them from citizenship, but also warranted their subjugation to their parents. Parents "have a sort of [r]ule and [j]urisdiction over them" until they arrive at full rationality. (7) Locke thus excluded them completely from the social contract. However, within Locke's worldview, this does not make sense. If rationality is only gradually developed, why should the granting of rights be an all-or-nothing proposition? (8)
Although children defy the conventional view of negative rights, they lend themselves more readily to a positive rights regime. Their very dependence and capacity for growth call for a positive right to protection and to the means necessary for their development. In fact, in the United States, while positive rights are only accepted "grudgingly and with suspicion," in connection with adults, they are much more easily accepted in relation to children. (9) Many state constitutions have recognized children's education as a fundamental right. (10) State legislatures have further created "welfare rights" especially applicable to children. (11)
Not only is the adoption of positive rights for children conceptually sound, but it would help assure adequate protection for children, which the current regime fats to do. American jurisprudence is typified by the DeShaney case, decided in 1989, in which the United States Supreme Court held that no fights were violated when a four-year-old child was beaten by his father to the point of brain damage, while the government stood by and a social worker "dutifully recorded these incidents [of abuse] in her files." (12) Conceptualizing the Constitution in negative terms, the Court explained that children have no right to protection from harm, even when there is already government involvement in their lives. (13)
This paper argues for a positive right to protection for children, rooted in dignity. Protecting the psychological integrity of children requires access to education, while protecting their physical integrity requires freedom from physical harm. In this paper, I focus on the more controversial of the two--looking at the corporal punishment of children within families and the duty of state intervention and protection. Part II defines positive rights and argues that their rejection is simplistic and untenable, using international, domestic, and comparative sources. Part III examines the American approach towards children, highlighting certain flaws. Part IV explores alternate legal approaches toward children using both international and comparative law. Part V advances a rights model rooted in dignity for the protection of children. Finally, Part VI grapples with the practical and conceptual problems posed by a positive right to protection for children, looking at both conflict and enforcement.
II. POSITIVE RIGHTS
This section examines the notion of positive rights. It gives content to the distinction between positive and negative rights and traces its origins and development. As is evident from international, domestic, and comparative treatment of positive rights, their categorical rejection is both simplistic and untenable.
A. The Distinction Between Positive and Negative Rights
Traditional liberal thought has developed an opposition between positive and negative rights. (14) Negative, or non-interference rights, prevent the state from violating individual autonomy, while positive, or integrative rights, impose a duty on the state to provide certain goods and services. (15) Thus, negative rights create distance around individuals, while positive rights connect. (16) This differentiation also reflects two conceptions of liberty: negative liberty, or liberty from, and positive liberty, or liberty to. (17)
The classical Western notion of rights is negative, stressing choice and autonomy. (18) Since the rights system is rooted in Western political traditions and philosophy, this led the human rights movement to historically assume a greater emphasis on negative rights. (19) Locke's conception of natural rights was intrinsically bound up with the individual's capacity to exercise rational choice as an autonomous human being. Thus, natural rights comprised negative freedoms to protect the individual's self-determination from violation by the state. (20) In this way, the rights model traditionally pits the individual against the state and erects barriers to protect the individual's selfhood from arbitrary government incursion. A fear of tyranny lies at the base of restrictions on governmental power through constitutional rights. (21)
Western liberal theory asserts the status of the individual and the individual's priority over both the state and society. (22) Under the social contract theory, the state is a product of individual choice, and the individual precedes and justifies the state. (23) Society is the mere sum of free individuals, organized to reach otherwise unreachable goals. (24) As Robert Cover explains, "[T]he first and fundamental unit is the individual and 'rights' locate him as an individual separate and apart from every other individual." (25) Thus, the human being is fundamentally individual, and the individual is seen as an end and kind of absolute. (26)
B. International Treatment of Positive Rights
International human rights documents, such as the Universal Declaration of Human Rights (UDHR), the foundation document of the human rights movement, espouse this negative/positive rights distinction. Negative rights are regarded as the civil and political rights enshrined in the International Covenant on Civil and Political Rights (ICCPR), (27) and positive rights are regarded as the economic, social, and cultural rights appearing in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). (28)
The "official" position, dating back to the UDHR and reaffirmed in multiple resolutions since that time, is that negative and positive rights are "universal, indivisible and interdependent and interrelated." (29) This reveals a recognition that: (1) for civil and political guarantees to have any meaning, it is necessary to assume a base level of living conditions; and (2) as the individual is not self-sufficient, the very conditions of life are assured by society. (30) The international approach thus connects rights with needs and reflects the understanding that the satisfaction of basic needs is essential for the realization of freedom. However, negative and positive rights are not on equal footing, and unlike the ICCPR's treatment of negative rights, the ICESCR only undertakes to realize positive rights "progressively" and "to the maximum of ... available resources." (31)
The trend in international law has been toward the recognition of greater complexity in human rights than the simple duality between negative and positive rights. Since the adoption of the UDHR in 1948, the United Nations has continuously developed more comprehensive rights instruments, recognizing three categories of rights. (32) "First generation," or blue rights, are the civil and political rights associated with liberal democracies. (33) These are rights to political participation, free speech, freedom of religion, freedom from torture, and fair trial, considered important for the maintenance of democracy and individualism. (34) "Second generation," or red rights, are the socio-economic and cultural rights preferred in socialist and communist regimes. (35) These rights are to goods, such as shelter, medical care, education, work, and leisure. (36) Finally, "third generation," or green rights, are group or solidarity rights of the greatest interest to developing countries. (37) These are peoples' rights to national self-determination and to such diffuse goods as peace, environmental and cultural integrity, and healthy economic development. (38) This last set of rights, rooted in communities, has moved the furthest from the original Western conception of rights and recognizes humanity as fundamentally social beings with social and communal needs.
C. American Treatment of Positive Rights
By contrast with the international position, the American approach reflects a more narrow understanding of government and rights. (39) The United States prides itself on having a negative constitution that tells state officials what they may not do, rather than what they must do. (40) This notion of the Constitution as a charter of negative liberties pervades judicial thinking and serves to exclude whole categories of individual needs and government misconduct from constitutional protection. (41) The Supreme Court has rejected claims to housing, medical services, education, and welfare. (42) The Court has further resisted recognizing any "affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." (43) Moreover, the Supreme Court accepts any justification for inequality in the distribution of basic necessities, such as food, shelter, and personal safety, that is "reasonably conceivable" and not patently arbitrary, provided that no suspect classes are involved. (44)
This American attitude is a result of both philosophical and practical objections. First, there is an anti-government national ethos, (45) echoing the days of colonial rebellion and the pioneers out West. The Madisonian constitutional scheme reflects a deep distrust of government action and power, including mechanisms, such as the separation of powers, to slow down government. Jeffersonian liberalism states that government is best that governs least. (46) Americans have traditionally been suspicious of big government and skeptical about national programs to achieve social goals, preferring to place their faith in self-reliant individualism. (47) Thus, government has been perceived in a "passive role, bound to respect preexisting rights," rather than "as an active agent in promoting, enforcing, and interpreting them." (48) Second, Americans have questioned whether positive rights are consistent in principle with the establishment of a free, democratic, market-oriented civil society. (49) A third important factor is the belief that only negative rights can be fully enforced, coupled with the view that, almost by definition, constitutional rights depend on complete judicial enforceability. (50)
Additionally, it is important to remember the age of the American Bill of Rights. Dating back over 200 years, the venerable age of the American Bill of Rights distinguishes it from the constitutions of other countries, many dating only as far back as the period post-World War II. The first ten amendments to the United States Constitution were in place long before the legislature began "to attend systematically to the health, safety, and well-being of citizens." (51)
Nonetheless, the Constitution does not allow for a simple characterization as negative. Some constitutional provisions clearly mandate government action. For example, the Sixth Amendment requires the government to provide the accused with a speedy public trial, compulsory process, and the assistance of counsel to indigent criminal defendants. (52) The Supreme Court has interpreted the Fifth Amendment to require Miranda warnings. (53) The equal protection clause sometimes requires that government take affirmative steps to ensure that certain groups are not treated unequally. (54) The Thirteenth Amendment prohibition on slavery covers private actions, and individuals are entitled to assistance from the state in enforcing it. (55) Even conventional negative rights, like the First Amendment, may require the government to take affirmative steps to allocate resources and ensure public access to forums and information to protect that right. (56)
Furthermore, state constitutions specifically call for the enforcement of positive rights. Every state constitution establishes explicit substantive goals that regulate government power and provide the basis for a variety of positive claims against the state. (57) Almost all state constitutions provide for the right to education and some states recognize constitutional rights to welfare, housing, health, and abortions. (58)
Moreover, despite powerful resistance, the United States now has many of the characteristics of a welfare state (59) (for instance, Social Security and Medicare programs) due to the efforts of Congress and the individual states. Ironically, negative rights stood in the way of this positive rights' development. Notions of individual rights, such as economic liberty and freedom of contract, forestalled government programs during the Lochner era. This example demonstrates that the inherent tension and contingency between rights necessitates difficult balancing choices. (60)
D. Comparative Treatment of Positive Rights
While American academics heatedly debate the wisdom of including positive economic or social rights in constitutional norms, the question, as a practical matter, is moot in much of the world. (61) Outside the United States, positive rights are widely accepted as matters of right that people are entitled to demand from the government, and most other liberal democracies enshrine affirmative government obligations in their constitutions. (62) "[F]ormulations vary from a bare recitation in the German Basic Law of 1949 that the Federal Republic of Germany is a 'social' state (Article 20) to detailed lists of specific social and economic rights such as that contained in the constitutions of France, Italy, Japan, Spain, and the Nordic countries." (63) Positive rights take a central place in the South African constitution (64) and in almost all Central and East European constitutions. (65)
As these developments show, an outright rejection of positive rights is both simplistic and untenable. The international trend is toward a greater espousal of positive rights; American resistance to positive rights is not the full story; and international law reflects a movement toward an increasingly complex and realistic understanding of rights. Some legal theorists have not only accepted the fundamentality of positive rights, but perceive that all rights have positive aspects. Tom Campbell, for instance, views rights as entailing four types of duties: the responsibility to respect, protect, ensure, and promote. (66) Thus, each right involves refraining from certain actions, while specifically taking others. Jeremy Waldron likewise perceives each right as "generating a multiplicity of duties." (67) He describes "successive waves of duty, some of them duties of omission, some of them duties of commission, and some of them too complicated to fit easily under either heading" for every right. (68) These "waves of duties" support each right and root it in a "complex and messy reality." (69) Waldron further posits that each set of duties in turn gives way to "further duties of enforcement and inquiry." (70)
III. THE AMERICAN APPROACH TOWARDS CHILDREN
To understand the DeShaney decision, it is necessary to place it within the context of the American approach toward children. This section therefore examines the status of children's rights in the United States, the balance struck with parents' rights, and the American approach toward violence against children. Such an analysis points to the following flaws: children's rights are inadequately recognized and eclipsed by parental rights; violence towards children is legally sanctioned; and courts avoid grappling with difficult issues by adhering to false action/inaction, public/private formalities.
A. The Rights of Children and Parents
Although the Supreme Court has recognized many constitutional rights for children, children's rights remain limited in comparison to those of adults, and they are easily trumped within the family and subsumed under the rights of parents. (71) The Supreme Court extended autonomy-based rights claims to children in the First Amendment and criminal contexts by incremental interpretation of the constitution. (72) However, outside criminal or administrative proceedings, (73) children's rights are diluted and often downgraded to interests. (74) Courts accept greater governmental authority to regulate the activities of minors than would be allowable for adults. (75) For instance, states may require attendance at school by minors, (76) restrict the religiously motivated activities of children when applying a rule of general applicability, (77) and limit minors' access to "objectionable" but not "obscene" material that could not constitutionally be kept from adults. (78)
One barrier to the constitutionalization of children's rights lies in federalism concerns. Federal courts are reluctant to interfere with state regulation, deeming children's interests both local and private. (79) Children's rights are perceived as part of family law, the paradigmatic turf of the states. (80)
While refusing to constitutionalize children's rights, American constitutional traditions have, nonetheless, long recognized parental rights over children. Although the Constitution is silent on specific rights for children or any other family members, parental rights gained a constitutional foothold during the heyday of substantive due process. (81) By exercising constitutionally protected rights to physical custody and control over upbringing, parents can define the rights of children. (82)
1. Parents' Substantive Due Process Rights and Their Limitation
The Meyer and Pierce line of cases stated that a parent's right to custody and control of children is a fundamental substantive due process right. (83) As Meyer explained, "substantive due process" "denotes not merely freedom from bodily restraint but also the right of the individual to ... establish a home and bring up children." (84) The Court applied this substantive due process right when finding unconstitutional a statute that prohibited teaching children languages other than English. Two years later, the Court echoed this concept in Pierce, upholding the "liberty of parents and guardians to direct the upbringing and education of children under their control," striking down a statute that prohibited children from attending private or parochial school. (85) In 1972, Yoder followed in the footsteps of these earlier cases, recognizing the right of Amish parents to educate their children at home, despite a compulsory school attendance law. The Court, however, somewhat toned down the rights language and referred to "the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children." (86)
These cases protected the family unit from destructive state intervention, but at a price for children. (87) Instead of focusing on children's rights to a religious education or an upbringing that reflected their family's values, the Court emphasized the parents' rights to control their children. The best guardian of the child's welfare may ordinarily be a parent, but the Court went beyond this proposition and constitutionalized the "parents' 'right' to speak, choose, and live through the child." (88) Thus, the control of children appeared an element of parental "liberty." (89) However, as Pierce himself observed, "[I]t is a strange perversion of the word 'liberty' to apply it to a right to control the conduct of others." (90) This formulation denies the child's "own voice and identity" and treats the child as the "conduit for the parents' religious expression, cultural identity, and class aspirations." (91) Children's rights are thus eclipsed by those of the parents, creating a tension between them.
This line of cases further established a parental property interest in children. Meyer and Pierce were grounded in economic substantive due process precedents from the Lochner era, and the concept of ownership was an important subtext in the parents' rights rhetoric they employed. (92) "[E]mphasizing parental rights as private goods flowing from the simple biological fact of parenthood," with no corresponding parental obligations, treats children as "objects, a form of private property." (93) Conceiving children as parental property enabled parents' claims that government regulation of their children infringed their own rights to fall neatly into paradigmatic constitutional protection of property interests. (94) In this way, substantive due process in the family arena, just as in the economic arena, can serve as both a liberating force and a conservative one maintaining the status quo of traditional social structures. (95)
Nevertheless, Meyer, Pierce, and Yoder did not envision the absolute dominion of parents over children. They presented "the notion that the work of parenthood is both a right and a duty, endowed with special public value." (96) The Court in Pierce explicitly made this link between parental rights and duties: "The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." (97) Furthermore, parental rights may not be exercised to actually harm the child. In Meyer, the Court reasoned that for children to learn a foreign language at their parents' request "cannot reasonably be regarded as harmful." (98) In Pierce, the Court struck down Oregon's compulsory public education law because it banned "a kind of undertaking not inherently harmful, but long regarded as useful and meritorious." (99) Finally, in Yoder, the Court explained that the "power of the parent ... may be subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." (100) The court thus recognized a limit to parental rights at the point of harm, without identifying the source or explaining the rationale for this limitation. The source and rationale, however, become readily apparent upon shifting focus to the child as a subject in possession of rights, rather than the mere object of the rights of...
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