Uneasy Tensions between Children's Rights and Civil Rights
34 Pages Posted: 22 Nov 2004
This essay begins an exploration of the opposition between, and intersection of, children's rights and civil rights. Although children's rights are sometimes placed under the umbrella of the civil rights movement, many children's rights do not seem to share the essential components of civil rights. Whereas children's rights to equal protection in education, protections against arbitrary state action, and limited freedom of speech and reproductive control, are tied to civil rights historically and conceptually, many other children's rights, such as the right to protection, support and continuity in a caregiver, arise out of the child protection strain of parens patriae doctrine, a tradition essentially aimed at social control, rather than tolerance or liberation, of non-dominant populations and, of course, women. The children's rights movement thus has aspects that are liberating or empowering but also, I hypothesize, aspects that derive from and even reinforce conditions and rhetoric that undermine liberty. Moreover, these non-liberatory aspects of the children's rights movement (dependency rights) may undermine the civil rights of adults.
In this essay, I explore these various faces of children's rights in the context of the Indian Child Welfare Act, a statute that is frequently the location of contests between children's civil and dependency rights and between children's rights and adult civil rights. Although both strands of the children's rights movement may overlap and the notions of civil rights and dependency are present in each, these two strands have distinct histories and purposes that are at odds with each other. The protective strand is rooted in challenges to, and continues to threaten, what we now consider to be the fundamental civil rights of poor families, especially families of color. The civil rights strand is rooted in opposition to race-based or coercive state intervention in private ordering and civic participation, including the creation and maintenance of family relationships.
This essay explores the distinctions between children's dependency rights and civil rights. It first rehearses the role and primacy of parental rights as civil rights in a liberal republican democracy, illustrating the point with the government's historic, value-based disruption of Native American families and culture. The next section offers a preliminary taxonomy of children's rights, dividing them between quasi-civil rights and dependency rights. That section explains how children's dependency and civil rights diverge and conflict. The final section draws distinctions between children's dependency and civil rights as vehicles for liberation and cautions against reflexive extensions of dependency rights under rubrics of liberty and justice.
Keywords: Children's rights, civil rights, family, Native American
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