The idea that children might have their own legal rights and interests has only recently begun to gain ground in this country. The first case to establish that theUnited States Constitution applies to minors, In re Gault, a delinquency case, was heard in 1967. And it was only in 1969 that the Supreme Court held that children have a right to due process and free speech, in Tinker vs. Des Moines, a case concerned with high school students who wore black armbands to school to protest the Vietnam war.
Public outrage has since led the Illinois legislature to pass a law requiring hearings on what would be in the best interest of children in contested adoptions, but the court has refused to allow them, apparently because one justice, James D. Heiple of Peoria, strongly believes in the rights of biological parents. But Even if we accept Kirchner’s story that he didn’t know the child was alive, reversing a legal adoption almost four years after the fact punishes an innocent young child and his family.
So that’s one reason why the law has simply not focused on children as having independent sets of values. The other of course is our tremendous ambivalence. We mouth platitudes about children being our future and our most precious resource–and at every turn we take actions that belie that. Because this is not a constituency that votes–this is literally often a group of people who cannot speak or act on behalf of their own interests.
SBM: What is the state’s legitimate role in a child’s life? How far can it go in concerning itself with child welfare?
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This is a concept known as parens patriae. It’s a Latin term, and it really encapsulates the idea that in certain cases when citizens have special vulnerabilities where they cannot protect their own interests–because of mental disability or in the case of a child–the state has a special role to actually stand in as the good parent. It says, when children need the state to step in–because they’ve been orphaned, because their parent isn’t serving the role that’s sort of the operating assumption here–that it will do that.
Beginning in the 1920s the United States Supreme Court said that the U.S. Constitution actually protects the family relationship through the 14th Amendment and the concept of due process. When you look at that language it’s not quite clear whether those were parents’ rights cases or family autonomy-rights cases. But what they do say is that the state should have a very good reason before it intervenes in that family relationship.
DG: Not anything that looks like corporal punishment. Anything that looks like suspected child abuse or neglect. That is defined in Illinois law as serious physical injury. Our laws still say that parents have a right–as part of this due-process biological right to be engaged in the care, control, education, and upbringing of children–to engage in corporal punishment as a form of discipline. It’s when it crosses that line that it exceeds reasonable people’s definition of reasonable corporal punishment in the law.
