Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

1979

Abstract

Despite all the talk about the rights of children in the past few years, it has not often been necessary to parse conflicting claims by parents and children, and to give independent constitutional content to the latter. Before 1979, the Supreme Court had reached the merits in only one case presenting that issue. The problem will arise whenever the state lends its aid to the parents in a familial dispute, and in time will doubtless provoke litigation in which outnumbered children claim the benefit of most of the Bill of Rights. Until now, debate has focused on the procedural and substantive protections afforded by the due process clause in cases in which the child has claimed interference with a protected liberty. What I find curious about the discussion generally, and about the Supreme Court's treatment of the problem in particular, is the nearly universal failure to be precise about the nature of the child's interest in "liberty." My dissatisfaction does not stem purely from a concern for philosophical clarity, for it seems to me that it ought to make a difference in the outcome. Both the utilitarian balance current in procedural due process cases and the distinction between fundamental and less important interests in the realm of substantive due process presuppose that a whole raft of individual claims which might be listed under "liberty" (or "property" as the case may be) can be assigned a more precise value which determines the amount of judicial protection each warrants. My concern in this piece is to outline what I think is at stake for children and adolescents in disputes over voluntary civil commitment, and to indicate how a more definite statement of the rights involved would have affected the 1979 decisions of the Supreme Court in Parham v. J.R. and Secretary of Public Welfare v. Institutionalized Juveniles.

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