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Children and Rights
Posted on: February 28, 2018 at 13:12:44 CT
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https://mises.org/library/children-and-rights
Murray Rothbard
[This article is excerpted from chapter 14 of The Ethics of Liberty. Listen to this article in MP3, read by Jeff Riggenbach. The entire book is being prepared for podcast and download.]
We have now established each man's property right in his own person and in the virgin land that he finds and transforms by his labor, and we have shown that from these two principles we can deduce the entire structure of property rights in all types of goods. These include the goods which he acquires in exchange or as a result of a voluntary gift or bequest.
There remains, however, the difficult case of children. The right of self-ownership by each man has been established for adults, for natural self-owners who must use their minds to select and pursue their ends. On the other hand, it is clear that a newborn babe is in no natural sense an existing self-owner, but rather a potential self-owner.[1] But this poses a difficult problem: for when, or in what way, does a growing child acquire his natural right to liberty and self-ownership? Gradually, or all at once? At what age? And what criteria do we set forth for this shift or transition?...
Even from birth, the parental ownership is not absolute but of a "trustee" or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother's body possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child's rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc. On the other hand, the very concept of "rights" is a "negative" one, demarcating the areas of a person's action that no man may properly interfere with. No man can therefore have a "right" to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced. Thus, we may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a "right" to a "living wage," for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced. As a corollary this means that, in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former's rights; the only legal obligation one man has to another is to respect the other man's rights.
Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.[2] The law, therefore, may not properly compel the parent to feed a child or to keep it alive.[3] (Again, whether or not a parent has a moral rather than a legally enforceable obligation to keep his child alive is a completely separate question.) This rule allows us to solve such vexing questions as: should a parent have the right to allow a deformed baby to die (e.g., by not feeding it)?[4] The answer is of course yes, following a fortiori from the larger right to allow any baby, whether deformed or not, to die. (Though, as we shall see below, in a libertarian society the existence of a free baby market will bring such "neglect" down to a minimum.)
Our theory also enables us to examine the question of Dr. Kenneth Edelin, of Boston City Hospital, who was convicted in 1975 of manslaughter for allowing a fetus to die (at the wish, of course, of the mother) after performing an abortion. If parents have the legal right to allow a baby to die, then a fortiori they have the same right for extra-uterine fetuses. Similarly, in a future world where babies may be born in extra-uterine devices ("test tubes"), again the parents would have the legal right to "pull the plug" on the fetuses or, rather, to refuse to pay to continue the plug in place.
Let us examine the implications of the doctrine that parents should have a legally enforceable obligation to keep their children alive. The argument for this obligation contains two components: that the parents created the child by a freely chosen, purposive act; and that the child is temporarily helpless and not a self-owner.[5] If we consider first the argument from helplessness, then first, we may make the general point that it is a philosophical fallacy to maintain that A's needs properly impose coercive obligations on B to satisfy these needs. For one thing, B's rights are then violated. Secondly, if a helpless child may be said to impose legal obligations on someone else, why specifically on its parents, and not on other people? What do the parents have to do with it? The answer, of course, is that they are the creators of the child, but this brings us to the second argument, the argument from creation.
Considering, then, the creation argument, this immediately rules out any obligation of a mother to keep a child alive who was the result of an act of rape, since this was not a freely undertaken act. It also rules out any such obligation by a stepparent, foster parent, or guardian, who didn't participate at all in creating the child.
Furthermore, if creation engenders an obligation to maintain the child, why should it stop when the child becomes an adult? As Evers states:
The parents are still the creators of the child, why aren't they obliged to support the child forever? It is true that the child is no longer helpless; but helplessness (as pointed out above) is not in and of itself a cause of binding obligation. If the condition of being the creator of another is the source of the obligation, and this condition persists, why doesn't the obligation?[6]
And what of the case, in some future decade, when a scientist becomes able to create human life in the laboratory? The scientist is then the "creator." Must he also have a legal obligation to keep the child alive? And suppose the child is deformed and ill, scarcely human; does he still have a binding legal obligation to maintain the child? And if so, how much of his resources — his time, energy, money, capital equipment — should he be legally required to invest to keep the child alive? Where does his obligation stop, and by what criterion?
This question of resources is also directly relevant to the case of natural parents. As Evers points out:
[L]et us consider the case of poor parents who have a child who gets sick. The sickness is grave enough that the parents in order to obtain the medical care to keep the baby alive, would have to starve themselves. Do the parents have an …obligation to lessen the quality of their own lives even to the point of self-extinction to aid the child?[7]
And if not, we might add, at what point does the parents' legal obligation properly cease? And by what criterion? Evers goes on:
One might want to argue that parents owe only the average minimal care (heat, shelter, nutrition) necessary to keep a child alive. But, if one is going to take the obligation position, it seems illogical — in view of the wide variety of human qualities and characteristics — to tie obligation to the Procrustean bed of the human average.[8]
A common argument holds that the voluntary act of the parents has created a "contract" by which the parents are obligated to maintain the child. But
a. this would also entail the alleged "contract" with the fetus that would prohibit abortion, and
b. this falls into all the difficulties with the contract theory as analyzed above.
Finally as Evers points out, suppose that we consider the case of a person who voluntarily rescues a child from a flaming wreck that kills the child's parents. In a very real sense, the rescuer has brought life to the child; does the rescuer, then, have a binding legal obligation to keep the child alive from then on? Wouldn't this be a "monstrous involuntary servitude that is being foisted upon a rescuer?"[9] And if for the rescuer, why not also for the natural parent?
The mother, then, becomes at the birth of her child its "trustee-owner," legally obliged only not to aggress against the child's person, since the child possesses the potential for self-ownership. Apart from that, so long as the child lives at home, it must necessarily come under the jurisdiction of its parents, since it is living on property owned by those parents. Certainly the parents have the right to set down rules for the use of their home and property for all persons (whether children or not) living in that home.
But when are we to say that this parental trustee jurisdiction over children shall come to an end? Surely any particular age (21,18, or whatever) can only be completely arbitrary. The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or "runs away" from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child's ultimate expression of his right of self-ownership, regardless of age.
Now if a parent may own his child (within the framework of non-aggression and runaway freedom), then he may also transfer that ownership to someone else. He may give the child out for adoption, or he may sell the rights to the child in a voluntary contract. In short, we must face the fact that the purely free society will have a flourishing free market in children. Superficially, this sounds monstrous and inhuman. But closer thought will reveal the superior humanism of such a market. For we must realize that there is a market for children now, but that since the government prohibits sale of children at a price, the parents may now only give their children away to a licensed adoption agency free of charge.[10] This means that we now indeed have a child-market, but that the government enforces a maximum price control of zero, and restricts the market to a few privileged and therefore monopolistic agencies. The result has been a typical market where the price of the commodity is held by government far below the free-market price: an enormous "shortage" of the good. The demand for babies and children is usually far greater than the supply, and hence we see daily tragedies of adults denied the joys of adopting children by prying and tyrannical adoption agencies. In fact, we find a large unsatisfied demand by adults and couples for children, along with a large number of surplus and unwanted babies neglected or maltreated by their parents. Allowing a free market in children would eliminate this imbalance, and would allow for an allocation of babies and children away from parents who dislike or do not care for their children, and toward foster parents who deeply desire such children. Everyone involved: the natural parents, the children, and the foster parents purchasing the children, would be better off in this sort of society.[11]
In the libertarian society, then, the mother would have the absolute right to her own body and therefore to perform an abortion; and would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price.
The present state of juvenile law in the United States, it might be pointed out, is in many ways nearly the reverse of our desired libertarian model. In the current situation, both the rights of parents and children are systematically violated by the State.[12]
First, the rights of the parents. In present law, children may be seized from their parents by outside adults (almost always, the State) for a variety of reasons. Two reasons, physical abuse by the parent and voluntary abandonment, are plausible, since in the former case the parent aggressed against the child, and in the latter the parent voluntarily abandoned custody. Two points, however, should be mentioned:
a. that, until recent years, the parents were rendered immune by court decisions from ordinary tort liability in physically aggressing against their children — fortunately, this is now being remedied;[13] and
b. despite the publicity being given to the "battered child syndrome," it has been estimated that only 5 percent of "child abuse" cases involve physical aggression by the parents.[14]
On the other hand, the two other grounds for seizing children from their parents, both coming under the broad rubric of "child neglect," clearly violate parental rights. These are: failure to provide children with the "proper" food, shelter, medical care, or education; and failure to provide children with a "fit environment." It should be clear that both categories, and especially the latter, are vague enough to provide an excuse for the State to seize almost any children, since it is up to the State to define what is "proper" and "fit." Equally vague are other, corollary, standards allowing the State to seize children whose "optimal development" is not being promoted by the parents, or where the "best interests" of the child (again, all defined by the State) are promoted thereby.
A few recent cases will serve as examples of how broadly the seizure power has been exercised. In the 1950 case of In re Watson, the state found a mother to have neglected three children by virtue of the fact that she was "incapable by reason of her emotional status, her mental condition, and her allegedly deeply religious feelings amounting to fanaticism." In its decision, fraught with totalitarian implications, the court stressed the alleged obligation of parents to bring up children respecting and adjusting to "the conventions and the mores of the community in which they are to live."[15] In 1954, in the case of Hunter v. Powers, the court again violated religious freedom as well as parental rights by seizing a child on the ground that the parent was too intensely devoted to a nonconformist religion, and that the child should properly have been studying or playing, rather than passing out religious literature. A year later, in the case of In re Black, a Utah court seized eight children from their parents because the parents had failed to teach the children that polygamy was immoral.[16]
Not only religion, but also personal morality has been dictated by the government. In 1962, five children were seized from their mother by a court on the ground that the mother "frequently entertained male companions in the apartment." In other cases, courts have held parents to have "neglected" the child, and thereupon seized the child, because parental quarrelling or a child's sense of insecurity allegedly endangered the child's best interests.
In a recent decision, Justice Woodside of the Pennsylvania Superior Court trenchantly warned of the massive coercive potential of the "best interest" criterion:
A court should not take the custody of a child from their parents solely on the ground that the state or its agencies can find a better home for them. If "the better home" test were the only test, public welfare officials could take children from half the parents in the state whose homes are considered to be the less desirable and place them in the homes of the other half of the population considered to have the more desirable homes. Extending this principle further, we would find that the family believed to have the best home would have the choice of any of our children.[17]
The rights of children, even more than those of parents, have been systematically invaded by the state. Compulsory school attendance laws, endemic in the United States since the turn of this century, force children either into public schools or into private schools officially approved by the state.[18] Supposedly "humanitarian" child labor laws have systematically forcibly prevented children from entering the labor force, thereby privileging their adult competitors. Forcibly prevented from working and earning a living, and forced into schools which they often dislike or are not suited for, children often become "truants," a charge used by the state to corral them into penal institutions in the name of "reform" schools, where children are in effect imprisoned for actions or non-actions that would never be considered "crimes" if committed by adults.
It has, indeed, been estimated that from one-quarter to one-half of "juvenile delinquents" currently incarcerated by the state did not commit acts that would be considered crimes if committed by adults (i.e., aggression against person and property).[19] The "crimes" of these children were in exercising their freedom in ways disliked by the minions of the state: truancy "incorrigibility," running away. Between the sexes, it is particularly girl children who are jailed in this way for "immoral" rather than truly criminal actions. The percentage of girls jailed for immorality ("waywardness," sexual relations) rather than for genuine crimes ranges from 50 to over 80 percent.[20]
Since the U.S. Supreme Court's decision in the 1967 case of In re Gault, juvenile defendants, at least in theory, have been accorded the elementary procedural rights of adults (the right to notice of specific charges, the right to counsel, the right to cross-examine witnesses), but these have only been granted in cases where they have actually been accused of being criminals. As Beatrice Levidow writes, the Gault and similar decisions:
do not apply to any adjudicatory hearings except those in which the offense charged to the juvenile would be violation of the criminal laws if committed by an adult. Therefore, the safeguards of Kent, Gault, and Winship do not protect the due process rights of juveniles who are dependent, neglected, in need of supervision, truant, run away, or accused of other offenses of which only juveniles can be guilty such as smoking, drinking, staying out late, etc.[21]
As a result, juveniles are habitually deprived of such elemental procedural rights accorded to adult defendants as the right to bail, the right to a transcript, the right to appeal, the right to a jury trial, the burden of proof to be on the prosecution, and the inadmissability of hearsay evidence. As Roscoe Pound has written, "the powers of the Star Chamber were a trifle in comparison with those of our juvenile courts." Once in a while, a dissenting judge has levelled a trenchant critique of this system. Thus, Judge Michael Musmanno stated in a 1954 Pennsylvania case:
Certain constitutional and legal guarantees, such as immunity against self-incrimination, prohibition of hearsay interdiction of ex parte and secret reports, all so jealously upheld in decisions from Alabama to Wyoming, are to be jettisoned in Pennsylvania when the person at the bar of justice is a tender-aged boy or girl.[22]
Furthermore, the state juvenile codes are studded with vague language that permits almost unlimited trial and incarceration for various forms of "immorality," "habitual truancy," "habitual disobedience," "incorrigibility," "ungovernability," "moral depravity," "in danger of becoming morally depraved," "immoral conduct," and even associating with persons of "immoral character."[23]
Moreover, the tyranny of indeterminate sentencing (see our chapter above on punishment) has been wielded against juveniles, with juveniles often receiving a longer sentence than an adult would have suffered for the same offense. Indeed the rule in contemporary juvenile justice has been to impose a sentence that may leave a juvenile in jail until he reaches the age of majority. Furthermore, in some states in recent years, this evil has been compounded by separating juvenile offenders into two categories — genuine criminals who are called "delinquents," and other, "immoral" children who are called "persons in need of supervision" or PINS. After which, the PINS "offenders" receive longer sentences than the actual juvenile criminals! Thus, in a recent study, Paul Lerman writes:
The range of institutional stay was two to twenty-eight months for delinquents and four to forty-eight months for PINS boys; the median was nine months for delinquents and thirteen months for PINS; and the average length of stay was 10.7 months for delinquents and 16.3 months for PINS….
The results of length of stay do not include the detention period; the stage of correctional processing prior to placement in an institution. Analyses of recent detention figures for all five boroughs of New York City revealed the following patterns: (1) PINS boys and girls are more likely to be detained than delinquents (54 to 31 percent); and (2) once PINS youth are detained they are twice as likely to be detained for more than 30 days than are regular delinquents (50 to 25 percent).[24]
Again, it is mainly female juveniles that are punished for "immoral" offenses. A recent study of Hawaii, for example, found that girls charged merely with running away normally spend two weeks in pretrial detention, whereas boys charged with actual crimes are held for only a few days; and that nearly 70 percent of the imprisoned girls in a state training school were incarcerated for immorality offenses, whereas the same was true of only 13 percent for the imprisoned boys.[25]
The current judicial view, which regards the child as having virtually no rights, was trenchantly analyzed by Supreme Court Justice Abe Fortas in his decision in the Gault case:
The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive.
These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the State was proceeding as parens patriae (the State as parent). The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historical credentials are of dubious relevance.
…The right of the State, as parens patriae, to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody." …If his parents default in effectively performing their custodial functions — that is if the child is "delinquent" — the state may interfere. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil" not "criminal" and therefore not subject to the requirements which restrict the State when it seeks to deprive a person of his liberty.[26]
It may be added that calling an action "civil" or "custody" does not make incarceration any more pleasant or any less incarceration for the victim of the "treatment" or the "rehabilitation." Criminologist Frederick Howlett has trenchantly criticized the juvenile court system, and placed it in a wider libertarian context. He writes of
the denial of certain basic rights of individuals — the right to associate with those of their choice and to engage voluntarily in acts that harm no one but themselves. The drunk who clogs our courts should have the right to get drunk; the …prostitute and her client should not have to answer to the law for an act that is their personal decision. The misbehaving child likewise has a fundamental right to be a child, and if he has committed no act that would be considered criminal were he an adult, why seek recourse through the courts …? Before rushing to treat or "help" a person outside the justice system, should not the community first consider the alternative of doing nothing? Should it not recognize the child's right, as a person, to nontreatment and noninterference by an outside authority?[27]
A particularly eloquent judicial defense of the rights of children occurred in an 1870 Illinois decision, years earlier than the modern assertion of state despotism in the juvenile court system, beginning with the turn of the century Progressive period. In his decision in People ex rel. O'Connell v. Turner, Justice Thornton declared:
The principle of the absorption of the child in, and its complete subjection to the despotism of, the State, is wholly inadmissible in the modern civilized world….
These laws provide for the "safe keeping" of the child; they direct his "commitment," and only a "ticket of leave," of the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of manhood by contact with the busy world…. The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors, for no offense has been committed. The writ of habeas corpus, a writ for the security of liberty can afford no relief, for the sovereign power of the State, as parens patriae, has determined the imprisonment beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the State are thus to be confined for the "good of society" then society had better be reduced to its original elements, and free government acknowledged a failure….
The disability of minors does not make slaves or criminals of them…. Can we hold children responsible for crime; liable for their torts; impose onerous burdens upon them, and yet deprive them of their liberty, without charge or conviction of crime? [The Illinois Bill of Rights, following upon the Virginia Declaration of Rights and the Declaration of Independence, declares that] "all men are, by nature, free and independent, and have certain inherent and inalienable rights — among these life, liberty, and the pursuit of happiness." This language is not restrictive; it is broad and comprehensive, and declares a grand truth, that "all men," all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right — a right independent of all human laws and regulations…. Even criminals cannot be convicted and imprisoned without due process of law.[28]
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Notes
[1] John Locke, in his Two Treatises on Government, p. 322, put it this way:
Children I confess are not born in this full state of equality (of right to their natural freedom), though they are born to it. Their parents have a sort of rule and jurisdiction over them when they come into the world, and for some time after, but 'tis but a temporary one. The bonds of this subjection are like the swaddling clothes they are wrapt up in, and supported by, in the weakness of their infancy. Age and reason as they grow up, loosen them till at length they drop quite off, and leave a man at his own free disposal.
[2] On the distinction between passive and active euthanasia, see Philippa R. Foot, Virtues and Vices (Berkeley: University of California Press, 1978), pp. 50ff.
[3] Cf. the view of the individualist anarchist theorist Benjamin R. Tucker: "Under equal freedom, as it [the child] develops individuality and independence, it is entitled to immunity from assault or invasion, and that is all. If the parent neglects to support it, he does not thereby oblige anyone else to support it." Benjamin R. Tucker, Instead of a Book (New York: B.R. Tucker, 1893), p. 144.
[4] The original program of the Euthanasia Society of America included the right of parents to allow monstrous babies to die. It has also been a common and growing practice for midwives and obstetricians to allow monstrous babies to die at birth by simply not taking positive acts to keep them alive. See John A. Robertson, "Involuntary Euthanasia of Defective Newborns: A Legal Analysis," Stanford Law Review (January 1975): 214–15.
[5] The argument of this and succeeding paragraphs relies heavily on Williamson M. Evers, "Political Theory and the Legal Rights of Children," (unpublished manuscript), pp. 13–17. Also see Evers, "The Law of Omissions and Neglect of Children," Journal of Libertarian Studies 2 (Winter 1978): 1–10 (PDF).
[6] Evers, "Political Theory," p. 17.
[7] Ibid., p. 16.
[8] Ibid., pp. 16–17.
[9] Ibid., pp. 15–16.
[10] It is now possible to make "independent placements" from one parent to another, but they can only be done with the approval of a judge, and such placements are officially discouraged. Thus, in Petitions of Goldman, the Supreme Court of Massachusetts refused to permit a Jewish couple to adopt twins born to Catholic parents, even though the natural parents were fully agreeable to the adoption. The ground of the refusal was that state regulations forbade cross-religious adoptions. See Lawrence List, "A Child and a Wall: A Study of 'Religious Protection' Laws," Buffalo Law Review (1963–64): 29; cited in Evers, "Political Theory," pp. 17–18.
[11] Some years ago, the New York City authorities proudly announced that they had broken up an "illegal baby ring." Babies were being imported for a price from Greece by enterprising merchants, and then sold to eager parents in New York. No one seemed to realize that everyone involved in this supposedly barbaric transaction benefited: the poverty-stricken Greek parents gained money, as well as the satisfaction of knowing that their babies would be brought up in far more affluent homes; the new parents gained their heart's desire of having babies; and the babies were transferred to a far happier environment. And the merchants earned their profits as middlemen. Everyone gained; who lost?
[12] On the current state of juvenile law in relation to the libertarian model, I am indebted to Evers, "Political Theory," passim.
[13] Immunity was originally granted parents in the 1891 decision of a Mississippi court in Hewlett v. Ragsdale. Recently, however, courts have been allowing children their full rights to sue for injuries. See Lawrence S. Allen, "Parent and Child-Tort Liability of Parent to Unemancipated Child," Case Western Reserve Law Review (November 1967): 139; Dennis L. Bekemeyer, "A Child's Rights Against His Parent: Evolution of the Parental Immunity Doctrine," University of Illinois Law Forum (Winter 1967): 806–7; and Kenneth D. McCloskey, "Parental Liability to a Minor Child for Injuries Caused by Excessive Punishment," Hastings Law Journal (February 1960): 335–40.
[14] Thus, see the report for Cook County in Patrick T. Murphy, Our Kindly Parent — the State (New York: Viking Press, 1974), pp. 153–54.
[15] Compare the dictum of Sanford Katz, a prominent "child abuse" specialist: "child neglect connotes a parent's conduct, usually thought of in terms of passive behavior, that results in a failure to provide for the child's needs as defined by the preferred values of the community." Sanford Katz, When Parents Fail (Boston: Beacon Press, 1971), p. 22. On parental quarrelling, and on In re Watson, see Michael F. Sullivan, "Child Neglect: The Environmental Aspects," Ohio State Law Journal (1968): 89–90,152–53.
[16] See Sullivan, "Child Neglect," p. 90.
[17] Quoted in Richard S. Levine, "Caveat Parens: A Demystification of the Child Protection System," University of Pittsburgh Law Review (Fall 1973): 32. Even more bizarre and totalitarian in its implications is the often proposed concept of a child's "right to be wanted." Apart from the impossibility of using violence to enforce an emotion on someone else, such a criterion would arm outside parties, in practice the State, with the power to determine when "wanting" exists and to seize children from parents who don't meet that scarcely definable criterion. Thus, Hillary Rodham, of the Children's Defense Fund, has challenged this criterion: "How should a 'right to be wanted' be defined and enforced? …The necessarily broad and vague enforcement guidelines could recreate the hazard of current laws, again requiring the State to make broad discretionary judgments about the quality of a child's life." Hillary Rodham, "Children Under the Law," Harvard Educational Review (1973): 496.
[18] On compulsory education in the United States, see William F. Rickenbacker, ed., The Twelve-Year Sentence (LaSalle, Ill.: Open Court, 1974).
[19] See William H. Sheridan, "Juveniles Who Commit Noncriminal Acts: Why Treat in a Correctional System?" Federal Probation (March 1967): 27. Also see Murphy, Our Kindly Parent, p. 104.
[20] In addition to Sheridan, "Juveniles Who Commit Noncriminal Acts," p. 27, see Paul Lerman, "Child Convicts," Transaction (July–August 1971): 35; Meda Chesney-Lind, "Juvenile Delinquency: The Sexualization of Female Crime," Psychology Today (July 1974): 45; Colonel F. Betz, "Minor's Rights to Consent to an Abortion," Santa Clara Lawyer (Spring 1971): 469–78; Ellen M. McNamara, "The Minor's Right to Abortion and the Requirement of Parental Consent," Virginia Law Review (February 1974): 30532; and Sol Rubin, "Children as Victims of Institutionalization," Child Welfare (January 1972): 9.
[21] Beatrice Levidow, "Overdue Process for Juveniles: For the Retroactive Restoration of Constitutional Rights," Howard Law Journal (1972): 413.
[22] Quoted in J. Douglas Irmen, "Children's Liberation — Reforming Juvenile Justice," University of Kansas Law Review (1972–73): 181–83. Also see Mark J. Green, "The Law of the Young," in B. Wasserstein and M. Green, eds., With Justice for Some (Boston: Beacon Press, 1970), p. 33; Sanford J. Fox, Cases and Material on Modern Juvenile Justice (St. Paul, Minn.: West, 1972), p. 68.
[23] See the dissent of Justice Cadena in the 1969 Texas case of E.S.G. v. State, in Fox, Cases and Material on Modern Juvenile Justice, pp. 296–98. Also see Lawrence J. Wolk, "Juvenile Court Statutes — Are They Void for Vagueness?" New YorkUniversityReview of Law and Social Change (Winter 1974): 53; Irmen, "Children's Liberation," pp. 181–83; and Lawrence R. Sidman, "The Massachusetts Stubborn Child Law: Law and Order in the Home," Family Law Quarterly (Spring 1972): 40–45.
[24] Lerman, "Child Convicts," p. 38. Also see Nora Klapmuts, "Children's Rights: The Legal Rights of Minors in Conflict with Law or Social Custom," Crime and Delinquency Literature (September 1972): 471.
[25] Meda Chesney-Lind, "Juvenile Delinquency," p. 46.
[26] Fox, Cases and Material on Modern Juvenile Justice, p. 14.
[27] Frederick W. Howlett, "Is the YSB All it's Cracked Up to Be?" Crime and Delinquency (October 1973): 489–91. In his excellent book, The Child Savers, Anthony Platt points out that the origin of the juvenile court — reform school system in the Progressive period at the turn of the twentieth century, was specifically designed to impose a despotic "reform" on the "immorality" of the nation's children on a massive scale. Thus, Platt in The Child Savers (Chicago: University of Chicago Press, 1970), pp. 99–100, writes that the "child savers"
were most active and successful in extending governmental control over a whole range of youthful activity that had been previously ignored or dealt with informally…. The child savers were prohibitionists in a general sense who believed that social progress depended on efficient law enforcement, strict supervision of children's leisure and recreation, and the regulation of illicit pleasures. Their efforts were directed at rescuing children from institutions and situations (theaters, dance halls, saloons, etc.) which threatened their "dependency." The child saving movement also raised the issue of child protection in order to challenge a variety of "deviant" institutions: thus, children could only be protected from sex and alcohol by destroying the brothels and saloons.
Also see ibid., pp. 54, 67–68, 140. For earlier expressions of "child-saving," parens patriae, and the incarceration of juveniles for truancy, see J. Lawrence Schultz, "The Cycle of Juvenile Court History," Crime and Delinquency (October 1973): 468; and Katz, When Parents Fail, p. 188.
[28] 55 111. 280 (1870), reprinted in Robert H. Bremner, ed., Children and Youth in America (Cambridge, Mass.: Harvard University Press, 1970–74), vol. 2, pp. 485–87. Naturally, the "child saving" reformers chafed at the results of the O'Connell decision, which the prominent Illinois social and child reformer Frederick Wines called "positively injurious. It proceeds from a morbid sensitivity on the subject of personal liberty." See Platt, The Child Savers, p. 106.
Murray Rothbard
[This article is excerpted from chapter 14 of The Ethics of Liberty. Listen to this article in MP3, read by Jeff Riggenbach. The entire book is being prepared for podcast and download.]
We have now established each man's property right in his own person and in the virgin land that he finds and transforms by his labor, and we have shown that from these two principles we can deduce the entire structure of property rights in all types of goods. These include the goods which he acquires in exchange or as a result of a voluntary gift or bequest.
There remains, however, the difficult case of children. The right of self-ownership by each man has been established for adults, for natural self-owners who must use their minds to select and pursue their ends. On the other hand, it is clear that a newborn babe is in no natural sense an existing self-owner, but rather a potential self-owner.[1] But this poses a difficult problem: for when, or in what way, does a growing child acquire his natural right to liberty and self-ownership? Gradually, or all at once? At what age? And what criteria do we set forth for this shift or transition?...
Even from birth, the parental ownership is not absolute but of a "trustee" or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother's body possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child's rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc. On the other hand, the very concept of "rights" is a "negative" one, demarcating the areas of a person's action that no man may properly interfere with. No man can therefore have a "right" to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced. Thus, we may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a "right" to a "living wage," for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced. As a corollary this means that, in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former's rights; the only legal obligation one man has to another is to respect the other man's rights.
Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.[2] The law, therefore, may not properly compel the parent to feed a child or to keep it alive.[3] (Again, whether or not a parent has a moral rather than a legally enforceable obligation to keep his child alive is a completely separate question.) This rule allows us to solve such vexing questions as: should a parent have the right to allow a deformed baby to die (e.g., by not feeding it)?[4] The answer is of course yes, following a fortiori from the larger right to allow any baby, whether deformed or not, to die. (Though, as we shall see below, in a libertarian society the existence of a free baby market will bring such "neglect" down to a minimum.)
Our theory also enables us to examine the question of Dr. Kenneth Edelin, of Boston City Hospital, who was convicted in 1975 of manslaughter for allowing a fetus to die (at the wish, of course, of the mother) after performing an abortion. If parents have the legal right to allow a baby to die, then a fortiori they have the same right for extra-uterine fetuses. Similarly, in a future world where babies may be born in extra-uterine devices ("test tubes"), again the parents would have the legal right to "pull the plug" on the fetuses or, rather, to refuse to pay to continue the plug in place.
Let us examine the implications of the doctrine that parents should have a legally enforceable obligation to keep their children alive. The argument for this obligation contains two components: that the parents created the child by a freely chosen, purposive act; and that the child is temporarily helpless and not a self-owner.[5] If we consider first the argument from helplessness, then first, we may make the general point that it is a philosophical fallacy to maintain that A's needs properly impose coercive obligations on B to satisfy these needs. For one thing, B's rights are then violated. Secondly, if a helpless child may be said to impose legal obligations on someone else, why specifically on its parents, and not on other people? What do the parents have to do with it? The answer, of course, is that they are the creators of the child, but this brings us to the second argument, the argument from creation.
Considering, then, the creation argument, this immediately rules out any obligation of a mother to keep a child alive who was the result of an act of rape, since this was not a freely undertaken act. It also rules out any such obligation by a stepparent, foster parent, or guardian, who didn't participate at all in creating the child.
Furthermore, if creation engenders an obligation to maintain the child, why should it stop when the child becomes an adult? As Evers states:
The parents are still the creators of the child, why aren't they obliged to support the child forever? It is true that the child is no longer helpless; but helplessness (as pointed out above) is not in and of itself a cause of binding obligation. If the condition of being the creator of another is the source of the obligation, and this condition persists, why doesn't the obligation?[6]
And what of the case, in some future decade, when a scientist becomes able to create human life in the laboratory? The scientist is then the "creator." Must he also have a legal obligation to keep the child alive? And suppose the child is deformed and ill, scarcely human; does he still have a binding legal obligation to maintain the child? And if so, how much of his resources — his time, energy, money, capital equipment — should he be legally required to invest to keep the child alive? Where does his obligation stop, and by what criterion?
This question of resources is also directly relevant to the case of natural parents. As Evers points out:
[L]et us consider the case of poor parents who have a child who gets sick. The sickness is grave enough that the parents in order to obtain the medical care to keep the baby alive, would have to starve themselves. Do the parents have an …obligation to lessen the quality of their own lives even to the point of self-extinction to aid the child?[7]
And if not, we might add, at what point does the parents' legal obligation properly cease? And by what criterion? Evers goes on:
One might want to argue that parents owe only the average minimal care (heat, shelter, nutrition) necessary to keep a child alive. But, if one is going to take the obligation position, it seems illogical — in view of the wide variety of human qualities and characteristics — to tie obligation to the Procrustean bed of the human average.[8]
A common argument holds that the voluntary act of the parents has created a "contract" by which the parents are obligated to maintain the child. But
a. this would also entail the alleged "contract" with the fetus that would prohibit abortion, and
b. this falls into all the difficulties with the contract theory as analyzed above.
Finally as Evers points out, suppose that we consider the case of a person who voluntarily rescues a child from a flaming wreck that kills the child's parents. In a very real sense, the rescuer has brought life to the child; does the rescuer, then, have a binding legal obligation to keep the child alive from then on? Wouldn't this be a "monstrous involuntary servitude that is being foisted upon a rescuer?"[9] And if for the rescuer, why not also for the natural parent?
The mother, then, becomes at the birth of her child its "trustee-owner," legally obliged only not to aggress against the child's person, since the child possesses the potential for self-ownership. Apart from that, so long as the child lives at home, it must necessarily come under the jurisdiction of its parents, since it is living on property owned by those parents. Certainly the parents have the right to set down rules for the use of their home and property for all persons (whether children or not) living in that home.
But when are we to say that this parental trustee jurisdiction over children shall come to an end? Surely any particular age (21,18, or whatever) can only be completely arbitrary. The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his full rights of self-ownership when he demonstrates that he has them in nature — in short, when he leaves or "runs away" from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child's ultimate expression of his right of self-ownership, regardless of age.
Now if a parent may own his child (within the framework of non-aggression and runaway freedom), then he may also transfer that ownership to someone else. He may give the child out for adoption, or he may sell the rights to the child in a voluntary contract. In short, we must face the fact that the purely free society will have a flourishing free market in children. Superficially, this sounds monstrous and inhuman. But closer thought will reveal the superior humanism of such a market. For we must realize that there is a market for children now, but that since the government prohibits sale of children at a price, the parents may now only give their children away to a licensed adoption agency free of charge.[10] This means that we now indeed have a child-market, but that the government enforces a maximum price control of zero, and restricts the market to a few privileged and therefore monopolistic agencies. The result has been a typical market where the price of the commodity is held by government far below the free-market price: an enormous "shortage" of the good. The demand for babies and children is usually far greater than the supply, and hence we see daily tragedies of adults denied the joys of adopting children by prying and tyrannical adoption agencies. In fact, we find a large unsatisfied demand by adults and couples for children, along with a large number of surplus and unwanted babies neglected or maltreated by their parents. Allowing a free market in children would eliminate this imbalance, and would allow for an allocation of babies and children away from parents who dislike or do not care for their children, and toward foster parents who deeply desire such children. Everyone involved: the natural parents, the children, and the foster parents purchasing the children, would be better off in this sort of society.[11]
In the libertarian society, then, the mother would have the absolute right to her own body and therefore to perform an abortion; and would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price.
The present state of juvenile law in the United States, it might be pointed out, is in many ways nearly the reverse of our desired libertarian model. In the current situation, both the rights of parents and children are systematically violated by the State.[12]
First, the rights of the parents. In present law, children may be seized from their parents by outside adults (almost always, the State) for a variety of reasons. Two reasons, physical abuse by the parent and voluntary abandonment, are plausible, since in the former case the parent aggressed against the child, and in the latter the parent voluntarily abandoned custody. Two points, however, should be mentioned:
a. that, until recent years, the parents were rendered immune by court decisions from ordinary tort liability in physically aggressing against their children — fortunately, this is now being remedied;[13] and
b. despite the publicity being given to the "battered child syndrome," it has been estimated that only 5 percent of "child abuse" cases involve physical aggression by the parents.[14]
On the other hand, the two other grounds for seizing children from their parents, both coming under the broad rubric of "child neglect," clearly violate parental rights. These are: failure to provide children with the "proper" food, shelter, medical care, or education; and failure to provide children with a "fit environment." It should be clear that both categories, and especially the latter, are vague enough to provide an excuse for the State to seize almost any children, since it is up to the State to define what is "proper" and "fit." Equally vague are other, corollary, standards allowing the State to seize children whose "optimal development" is not being promoted by the parents, or where the "best interests" of the child (again, all defined by the State) are promoted thereby.
A few recent cases will serve as examples of how broadly the seizure power has been exercised. In the 1950 case of In re Watson, the state found a mother to have neglected three children by virtue of the fact that she was "incapable by reason of her emotional status, her mental condition, and her allegedly deeply religious feelings amounting to fanaticism." In its decision, fraught with totalitarian implications, the court stressed the alleged obligation of parents to bring up children respecting and adjusting to "the conventions and the mores of the community in which they are to live."[15] In 1954, in the case of Hunter v. Powers, the court again violated religious freedom as well as parental rights by seizing a child on the ground that the parent was too intensely devoted to a nonconformist religion, and that the child should properly have been studying or playing, rather than passing out religious literature. A year later, in the case of In re Black, a Utah court seized eight children from their parents because the parents had failed to teach the children that polygamy was immoral.[16]
Not only religion, but also personal morality has been dictated by the government. In 1962, five children were seized from their mother by a court on the ground that the mother "frequently entertained male companions in the apartment." In other cases, courts have held parents to have "neglected" the child, and thereupon seized the child, because parental quarrelling or a child's sense of insecurity allegedly endangered the child's best interests.
In a recent decision, Justice Woodside of the Pennsylvania Superior Court trenchantly warned of the massive coercive potential of the "best interest" criterion:
A court should not take the custody of a child from their parents solely on the ground that the state or its agencies can find a better home for them. If "the better home" test were the only test, public welfare officials could take children from half the parents in the state whose homes are considered to be the less desirable and place them in the homes of the other half of the population considered to have the more desirable homes. Extending this principle further, we would find that the family believed to have the best home would have the choice of any of our children.[17]
The rights of children, even more than those of parents, have been systematically invaded by the state. Compulsory school attendance laws, endemic in the United States since the turn of this century, force children either into public schools or into private schools officially approved by the state.[18] Supposedly "humanitarian" child labor laws have systematically forcibly prevented children from entering the labor force, thereby privileging their adult competitors. Forcibly prevented from working and earning a living, and forced into schools which they often dislike or are not suited for, children often become "truants," a charge used by the state to corral them into penal institutions in the name of "reform" schools, where children are in effect imprisoned for actions or non-actions that would never be considered "crimes" if committed by adults.
It has, indeed, been estimated that from one-quarter to one-half of "juvenile delinquents" currently incarcerated by the state did not commit acts that would be considered crimes if committed by adults (i.e., aggression against person and property).[19] The "crimes" of these children were in exercising their freedom in ways disliked by the minions of the state: truancy "incorrigibility," running away. Between the sexes, it is particularly girl children who are jailed in this way for "immoral" rather than truly criminal actions. The percentage of girls jailed for immorality ("waywardness," sexual relations) rather than for genuine crimes ranges from 50 to over 80 percent.[20]
Since the U.S. Supreme Court's decision in the 1967 case of In re Gault, juvenile defendants, at least in theory, have been accorded the elementary procedural rights of adults (the right to notice of specific charges, the right to counsel, the right to cross-examine witnesses), but these have only been granted in cases where they have actually been accused of being criminals. As Beatrice Levidow writes, the Gault and similar decisions:
do not apply to any adjudicatory hearings except those in which the offense charged to the juvenile would be violation of the criminal laws if committed by an adult. Therefore, the safeguards of Kent, Gault, and Winship do not protect the due process rights of juveniles who are dependent, neglected, in need of supervision, truant, run away, or accused of other offenses of which only juveniles can be guilty such as smoking, drinking, staying out late, etc.[21]
As a result, juveniles are habitually deprived of such elemental procedural rights accorded to adult defendants as the right to bail, the right to a transcript, the right to appeal, the right to a jury trial, the burden of proof to be on the prosecution, and the inadmissability of hearsay evidence. As Roscoe Pound has written, "the powers of the Star Chamber were a trifle in comparison with those of our juvenile courts." Once in a while, a dissenting judge has levelled a trenchant critique of this system. Thus, Judge Michael Musmanno stated in a 1954 Pennsylvania case:
Certain constitutional and legal guarantees, such as immunity against self-incrimination, prohibition of hearsay interdiction of ex parte and secret reports, all so jealously upheld in decisions from Alabama to Wyoming, are to be jettisoned in Pennsylvania when the person at the bar of justice is a tender-aged boy or girl.[22]
Furthermore, the state juvenile codes are studded with vague language that permits almost unlimited trial and incarceration for various forms of "immorality," "habitual truancy," "habitual disobedience," "incorrigibility," "ungovernability," "moral depravity," "in danger of becoming morally depraved," "immoral conduct," and even associating with persons of "immoral character."[23]
Moreover, the tyranny of indeterminate sentencing (see our chapter above on punishment) has been wielded against juveniles, with juveniles often receiving a longer sentence than an adult would have suffered for the same offense. Indeed the rule in contemporary juvenile justice has been to impose a sentence that may leave a juvenile in jail until he reaches the age of majority. Furthermore, in some states in recent years, this evil has been compounded by separating juvenile offenders into two categories — genuine criminals who are called "delinquents," and other, "immoral" children who are called "persons in need of supervision" or PINS. After which, the PINS "offenders" receive longer sentences than the actual juvenile criminals! Thus, in a recent study, Paul Lerman writes:
The range of institutional stay was two to twenty-eight months for delinquents and four to forty-eight months for PINS boys; the median was nine months for delinquents and thirteen months for PINS; and the average length of stay was 10.7 months for delinquents and 16.3 months for PINS….
The results of length of stay do not include the detention period; the stage of correctional processing prior to placement in an institution. Analyses of recent detention figures for all five boroughs of New York City revealed the following patterns: (1) PINS boys and girls are more likely to be detained than delinquents (54 to 31 percent); and (2) once PINS youth are detained they are twice as likely to be detained for more than 30 days than are regular delinquents (50 to 25 percent).[24]
Again, it is mainly female juveniles that are punished for "immoral" offenses. A recent study of Hawaii, for example, found that girls charged merely with running away normally spend two weeks in pretrial detention, whereas boys charged with actual crimes are held for only a few days; and that nearly 70 percent of the imprisoned girls in a state training school were incarcerated for immorality offenses, whereas the same was true of only 13 percent for the imprisoned boys.[25]
The current judicial view, which regards the child as having virtually no rights, was trenchantly analyzed by Supreme Court Justice Abe Fortas in his decision in the Gault case:
The idea of crime and punishment was to be abandoned. The child was to be "treated" and "rehabilitated and the procedures, from apprehension through institutionalization, were to be "clinical" rather than punitive.
These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the State was proceeding as parens patriae (the State as parent). The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historical credentials are of dubious relevance.
…The right of the State, as parens patriae, to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right "not to liberty but to custody." …If his parents default in effectively performing their custodial functions — that is if the child is "delinquent" — the state may interfere. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the "custody" to which the child is entitled. On this basis, proceedings involving juveniles were described as "civil" not "criminal" and therefore not subject to the requirements which restrict the State when it seeks to deprive a person of his liberty.[26]
It may be added that calling an action "civil" or "custody" does not make incarceration any more pleasant or any less incarceration for the victim of the "treatment" or the "rehabilitation." Criminologist Frederick Howlett has trenchantly criticized the juvenile court system, and placed it in a wider libertarian context. He writes of
the denial of certain basic rights of individuals — the right to associate with those of their choice and to engage voluntarily in acts that harm no one but themselves. The drunk who clogs our courts should have the right to get drunk; the …prostitute and her client should not have to answer to the law for an act that is their personal decision. The misbehaving child likewise has a fundamental right to be a child, and if he has committed no act that would be considered criminal were he an adult, why seek recourse through the courts …? Before rushing to treat or "help" a person outside the justice system, should not the community first consider the alternative of doing nothing? Should it not recognize the child's right, as a person, to nontreatment and noninterference by an outside authority?[27]
A particularly eloquent judicial defense of the rights of children occurred in an 1870 Illinois decision, years earlier than the modern assertion of state despotism in the juvenile court system, beginning with the turn of the century Progressive period. In his decision in People ex rel. O'Connell v. Turner, Justice Thornton declared:
The principle of the absorption of the child in, and its complete subjection to the despotism of, the State, is wholly inadmissible in the modern civilized world….
These laws provide for the "safe keeping" of the child; they direct his "commitment," and only a "ticket of leave," of the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of manhood by contact with the busy world…. The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors, for no offense has been committed. The writ of habeas corpus, a writ for the security of liberty can afford no relief, for the sovereign power of the State, as parens patriae, has determined the imprisonment beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the State are thus to be confined for the "good of society" then society had better be reduced to its original elements, and free government acknowledged a failure….
The disability of minors does not make slaves or criminals of them…. Can we hold children responsible for crime; liable for their torts; impose onerous burdens upon them, and yet deprive them of their liberty, without charge or conviction of crime? [The Illinois Bill of Rights, following upon the Virginia Declaration of Rights and the Declaration of Independence, declares that] "all men are, by nature, free and independent, and have certain inherent and inalienable rights — among these life, liberty, and the pursuit of happiness." This language is not restrictive; it is broad and comprehensive, and declares a grand truth, that "all men," all people, everywhere, have the inherent and inalienable right to liberty. Shall we say to the children of the State, you shall not enjoy this right — a right independent of all human laws and regulations…. Even criminals cannot be convicted and imprisoned without due process of law.[28]
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Notes
[1] John Locke, in his Two Treatises on Government, p. 322, put it this way:
Children I confess are not born in this full state of equality (of right to their natural freedom), though they are born to it. Their parents have a sort of rule and jurisdiction over them when they come into the world, and for some time after, but 'tis but a temporary one. The bonds of this subjection are like the swaddling clothes they are wrapt up in, and supported by, in the weakness of their infancy. Age and reason as they grow up, loosen them till at length they drop quite off, and leave a man at his own free disposal.
[2] On the distinction between passive and active euthanasia, see Philippa R. Foot, Virtues and Vices (Berkeley: University of California Press, 1978), pp. 50ff.
[3] Cf. the view of the individualist anarchist theorist Benjamin R. Tucker: "Under equal freedom, as it [the child] develops individuality and independence, it is entitled to immunity from assault or invasion, and that is all. If the parent neglects to support it, he does not thereby oblige anyone else to support it." Benjamin R. Tucker, Instead of a Book (New York: B.R. Tucker, 1893), p. 144.
[4] The original program of the Euthanasia Society of America included the right of parents to allow monstrous babies to die. It has also been a common and growing practice for midwives and obstetricians to allow monstrous babies to die at birth by simply not taking positive acts to keep them alive. See John A. Robertson, "Involuntary Euthanasia of Defective Newborns: A Legal Analysis," Stanford Law Review (January 1975): 214–15.
[5] The argument of this and succeeding paragraphs relies heavily on Williamson M. Evers, "Political Theory and the Legal Rights of Children," (unpublished manuscript), pp. 13–17. Also see Evers, "The Law of Omissions and Neglect of Children," Journal of Libertarian Studies 2 (Winter 1978): 1–10 (PDF).
[6] Evers, "Political Theory," p. 17.
[7] Ibid., p. 16.
[8] Ibid., pp. 16–17.
[9] Ibid., pp. 15–16.
[10] It is now possible to make "independent placements" from one parent to another, but they can only be done with the approval of a judge, and such placements are officially discouraged. Thus, in Petitions of Goldman, the Supreme Court of Massachusetts refused to permit a Jewish couple to adopt twins born to Catholic parents, even though the natural parents were fully agreeable to the adoption. The ground of the refusal was that state regulations forbade cross-religious adoptions. See Lawrence List, "A Child and a Wall: A Study of 'Religious Protection' Laws," Buffalo Law Review (1963–64): 29; cited in Evers, "Political Theory," pp. 17–18.
[11] Some years ago, the New York City authorities proudly announced that they had broken up an "illegal baby ring." Babies were being imported for a price from Greece by enterprising merchants, and then sold to eager parents in New York. No one seemed to realize that everyone involved in this supposedly barbaric transaction benefited: the poverty-stricken Greek parents gained money, as well as the satisfaction of knowing that their babies would be brought up in far more affluent homes; the new parents gained their heart's desire of having babies; and the babies were transferred to a far happier environment. And the merchants earned their profits as middlemen. Everyone gained; who lost?
[12] On the current state of juvenile law in relation to the libertarian model, I am indebted to Evers, "Political Theory," passim.
[13] Immunity was originally granted parents in the 1891 decision of a Mississippi court in Hewlett v. Ragsdale. Recently, however, courts have been allowing children their full rights to sue for injuries. See Lawrence S. Allen, "Parent and Child-Tort Liability of Parent to Unemancipated Child," Case Western Reserve Law Review (November 1967): 139; Dennis L. Bekemeyer, "A Child's Rights Against His Parent: Evolution of the Parental Immunity Doctrine," University of Illinois Law Forum (Winter 1967): 806–7; and Kenneth D. McCloskey, "Parental Liability to a Minor Child for Injuries Caused by Excessive Punishment," Hastings Law Journal (February 1960): 335–40.
[14] Thus, see the report for Cook County in Patrick T. Murphy, Our Kindly Parent — the State (New York: Viking Press, 1974), pp. 153–54.
[15] Compare the dictum of Sanford Katz, a prominent "child abuse" specialist: "child neglect connotes a parent's conduct, usually thought of in terms of passive behavior, that results in a failure to provide for the child's needs as defined by the preferred values of the community." Sanford Katz, When Parents Fail (Boston: Beacon Press, 1971), p. 22. On parental quarrelling, and on In re Watson, see Michael F. Sullivan, "Child Neglect: The Environmental Aspects," Ohio State Law Journal (1968): 89–90,152–53.
[16] See Sullivan, "Child Neglect," p. 90.
[17] Quoted in Richard S. Levine, "Caveat Parens: A Demystification of the Child Protection System," University of Pittsburgh Law Review (Fall 1973): 32. Even more bizarre and totalitarian in its implications is the often proposed concept of a child's "right to be wanted." Apart from the impossibility of using violence to enforce an emotion on someone else, such a criterion would arm outside parties, in practice the State, with the power to determine when "wanting" exists and to seize children from parents who don't meet that scarcely definable criterion. Thus, Hillary Rodham, of the Children's Defense Fund, has challenged this criterion: "How should a 'right to be wanted' be defined and enforced? …The necessarily broad and vague enforcement guidelines could recreate the hazard of current laws, again requiring the State to make broad discretionary judgments about the quality of a child's life." Hillary Rodham, "Children Under the Law," Harvard Educational Review (1973): 496.
[18] On compulsory education in the United States, see William F. Rickenbacker, ed., The Twelve-Year Sentence (LaSalle, Ill.: Open Court, 1974).
[19] See William H. Sheridan, "Juveniles Who Commit Noncriminal Acts: Why Treat in a Correctional System?" Federal Probation (March 1967): 27. Also see Murphy, Our Kindly Parent, p. 104.
[20] In addition to Sheridan, "Juveniles Who Commit Noncriminal Acts," p. 27, see Paul Lerman, "Child Convicts," Transaction (July–August 1971): 35; Meda Chesney-Lind, "Juvenile Delinquency: The Sexualization of Female Crime," Psychology Today (July 1974): 45; Colonel F. Betz, "Minor's Rights to Consent to an Abortion," Santa Clara Lawyer (Spring 1971): 469–78; Ellen M. McNamara, "The Minor's Right to Abortion and the Requirement of Parental Consent," Virginia Law Review (February 1974): 30532; and Sol Rubin, "Children as Victims of Institutionalization," Child Welfare (January 1972): 9.
[21] Beatrice Levidow, "Overdue Process for Juveniles: For the Retroactive Restoration of Constitutional Rights," Howard Law Journal (1972): 413.
[22] Quoted in J. Douglas Irmen, "Children's Liberation — Reforming Juvenile Justice," University of Kansas Law Review (1972–73): 181–83. Also see Mark J. Green, "The Law of the Young," in B. Wasserstein and M. Green, eds., With Justice for Some (Boston: Beacon Press, 1970), p. 33; Sanford J. Fox, Cases and Material on Modern Juvenile Justice (St. Paul, Minn.: West, 1972), p. 68.
[23] See the dissent of Justice Cadena in the 1969 Texas case of E.S.G. v. State, in Fox, Cases and Material on Modern Juvenile Justice, pp. 296–98. Also see Lawrence J. Wolk, "Juvenile Court Statutes — Are They Void for Vagueness?" New YorkUniversityReview of Law and Social Change (Winter 1974): 53; Irmen, "Children's Liberation," pp. 181–83; and Lawrence R. Sidman, "The Massachusetts Stubborn Child Law: Law and Order in the Home," Family Law Quarterly (Spring 1972): 40–45.
[24] Lerman, "Child Convicts," p. 38. Also see Nora Klapmuts, "Children's Rights: The Legal Rights of Minors in Conflict with Law or Social Custom," Crime and Delinquency Literature (September 1972): 471.
[25] Meda Chesney-Lind, "Juvenile Delinquency," p. 46.
[26] Fox, Cases and Material on Modern Juvenile Justice, p. 14.
[27] Frederick W. Howlett, "Is the YSB All it's Cracked Up to Be?" Crime and Delinquency (October 1973): 489–91. In his excellent book, The Child Savers, Anthony Platt points out that the origin of the juvenile court — reform school system in the Progressive period at the turn of the twentieth century, was specifically designed to impose a despotic "reform" on the "immorality" of the nation's children on a massive scale. Thus, Platt in The Child Savers (Chicago: University of Chicago Press, 1970), pp. 99–100, writes that the "child savers"
were most active and successful in extending governmental control over a whole range of youthful activity that had been previously ignored or dealt with informally…. The child savers were prohibitionists in a general sense who believed that social progress depended on efficient law enforcement, strict supervision of children's leisure and recreation, and the regulation of illicit pleasures. Their efforts were directed at rescuing children from institutions and situations (theaters, dance halls, saloons, etc.) which threatened their "dependency." The child saving movement also raised the issue of child protection in order to challenge a variety of "deviant" institutions: thus, children could only be protected from sex and alcohol by destroying the brothels and saloons.
Also see ibid., pp. 54, 67–68, 140. For earlier expressions of "child-saving," parens patriae, and the incarceration of juveniles for truancy, see J. Lawrence Schultz, "The Cycle of Juvenile Court History," Crime and Delinquency (October 1973): 468; and Katz, When Parents Fail, p. 188.
[28] 55 111. 280 (1870), reprinted in Robert H. Bremner, ed., Children and Youth in America (Cambridge, Mass.: Harvard University Press, 1970–74), vol. 2, pp. 485–87. Naturally, the "child saving" reformers chafed at the results of the O'Connell decision, which the prominent Illinois social and child reformer Frederick Wines called "positively injurious. It proceeds from a morbid sensitivity on the subject of personal liberty." See Platt, The Child Savers, p. 106.
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Children and Rights - pickle MU - 2/28 13:12:44