Children's Rights and Parents' Responsibilities

Article excerpt

Martin Guggenheim, What's Wrong with Children's Rights Cambridge, MA: Harvard University Press, 2005, pp. 320.

In the interest of full disclosure, I will begin this essay by explaining that Martin Guggenheim, author of What's Wrong with Children's Rights, (1) and I are on opposite sides of the children's rights issues. This is not to say I disagree with everything that Professor Guggenheim says in his book, but that he and I are often on opposing sides of discussions, debates, and even court cases in which children's and parental rights are at issue.

The fact that I have disagreed with many of the positions Professor Guggenheim takes on matters of children's rights, caused me some trepidation when I picked up the book knowing I would be writing a review essay.

My greatest concern would be whether I could and would be fair and objective. In the end, I believe I am able to be objective and fair and to give the book its due.

That said, let me begin by saying that What's Wrong with Children's Rights is an excellent book. Professor Guggenheim is a gifted student of the law, passionate about his beliefs, and cares deeply about the subject matter. As I am only a social scientist, I learned a great deal about the legal precedents regarding parental rights. Anyone with an interest in the intersection of parental and children's rights ought to read this book.

Parental Rights and Children's Rights

The Uneven Playing Field

If I ever had any notions about writing a book on children's rights, I gave that up about 100 pages into Guggenheim's book. It is clear beyond doubt that the United States Constitution grants parents a "liberty interest" to raise their children without unwarranted or unjustified state interference. The Supreme Court, in a number of decisions, has made it clear that the state cannot enter into family life, and that includes the right to have children and raise them as the parents see fit (my words). The Supreme Court stated this position in 1977 in Smith v. Organization of Foster Families for Equality & Reform. (2) In this decision, which Guggenheim refers to using the acronym (OFFER), the court stated that parents have a "constitutionally recognized liberty interest" in maintaining custody of their children "that derives from blood relationship, state law sanction, and basic human right." (3) This liberty interest is not absolute, but I will hold that discussion for later in this essay.

With the sanction of the Constitution and the Supreme Court, it is clear that were I to undertake a volume on children's rights, the result would be an extremely thin pamphlet, if not a page or two.

It is also clear that there is good reason why the United States Senate has never ratified the United National Convention for the Rights of the Child. (4) I will concede that many children's rights advocates have used the Senate's failure to ratify the Convention as a means of demonizing the conservative Congress and administration. I will also concede that many children's rights advocates see ratification as a way of getting the camel's nose into the tent as a hopeful first step in expanding children's rights and even achieving rights for children under the Fourteenth Amendment of the United States Constitution.

I agree with Guggenheim that the United States Senate is not going to ratify the Convention and that there are sound reasons for failure to ratify. In the main, I would concur with Guggenheim that keeping the state out of the family is one of the strengths of the Constitution of the United States. There is no end of mischief the state could engage in were it to be given access to the private domain of the family and the cherished right to have and raise children. And, as I will expand on below, the number of families and parents who abuse the rights granted by the Constitution is not especially large.

An unanticipated facet of the technological advances in modern society is that they have unintentionally expanded parental rights. …

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