Child Rights and Remedies

By Robert C. Fellmeth | Go to book overview
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CHAPTER THIRTEEN
Child Civil Liberties:
Speech and Religion

A. THE CONTEXT OF CONSTITUTIONAL LAW FOR CHILDREN

Children suffer from three disadvantages in securing constitution-based 1st Amendment protection: (1) “state action” asymmetry: (2) lack of access to court redress: and (3) child immaturity as a permitted distinction.


1. The “State Action” Requirement and Private Power Disadvantage

As discussed briefly in Chapter 1. the substantive constitutional guarantees of the first eight amendments originally focused on the feared federal government, seeking to limit it vis-ä-vis the citizenry. They have been extended through the 14th Amendment also to assure individual liberties as against state governments. This requirement of “state action” to invoke protection necessarily excludes purely private parties and institutions. Some sources of such private power may operate with coercive force: from a one-company town monopoly to adult control of a child. Children suffer extraordinary disadvantage in their private bargaining power. They are subservient to the private power of adult parents, protectors, advocates, and others. Where suffering harm in their care, or from third parties or commercial exploitation or injury, children rely on the state for protection—via statutes or executive or judicial intervention. As noted above. federal and state constitutional prescriptions limit this, not the private power of the citizenry. Hence, the constitution functions substantially in a one-way direction for children: since they are most affected by private power abuse, constitutional limitations on the state may impede their sole remedy (state action against adults who may be their abusers). Although the state possesses extensive police powers properly subject to internal check, the state can also be a check itself to moderate private power abuse on behalf of an otherwise powerless population.

Related to “state action” asymmetry is the fact that constitutional doctrine tends to apply in the negative, to stop state intrusions rather than to compel state action. So. for example, if the basic economic or social rights of children were part of a nation's founding document (as is the case with many of the European constitutions, or would pertain if the U.S. were to ratify the Convention on the Rights of the Child) the state may be affirmatively compelled to act. For example, were children to be afforded the assured protection of minimal sustenance for survival, health care, or the right to a parental relationship, such rights could trigger an affirmative state action obligation. Our constitutional structure is not so framed.

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