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Martin Guggenheim Ratify the U.N. Convention on the Rights of the Child, But Don't Expect Any Miracles

Martin Guggenheim Ratify the U.N. Convention on the Rights of the Child, But Don't Expect Any Miracles

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Published by Francisco Estrada
Martin Guggenheim, Ratify the U.N. Convention on the Rights of the Child, But Don't Expect Any Miracles
Martin Guggenheim, Ratify the U.N. Convention on the Rights of the Child, But Don't Expect Any Miracles

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Published by: Francisco Estrada on Nov 10, 2010
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01/07/2013

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RATIFY THE U.N. CONVENTION ON THE RIGHTS OF THECHILD, BUT DON’T EXPECT ANY MIRACLES
 Martin Guggenheim
 
I
NTRODUCTION
 Shortly after my book 
What’s Wrong with Children’s Rights
1
waspublished, I was pleased to receive a phone call from John Witte, Jr., invitingme to participate in this important conference. Professor Witte must haverealized, of course, that it would be impossible for me to refuse an invitation toparticipate in a conference entitled “What’s Wrong with Rights for Children?”It is a privilege for me to be a part of this effort to explore systematically theobstacles to, and potential benefits from, the U.S. ratification of the U.N.Convention on the Rights of the Child.
2
 The great majority of invitees to this conference are well known supportersof the Convention and have long urged the United States to ratify it. I suspectthat I was invited as a potential opponent because I am somewhat skepticalabout the benefits of conferring rights upon children. I welcome thisopportunity to clarify my belief that making children rights-holders isinsufficient to ensure justice for children. But, to the extent I was supposed toexpress opposition to U.S. ratification of the Convention, I am afraid that I willdisappoint. I am pleased to join those who seek to have this country join thenations of the world and formally ratify the strongest expression of children’srights ever formally adopted.Before discussing my particular hopes for how the Convention could leadto some actual good for children, I will begin by indicating what, at least forme, is wrong with children’s rights.
Fiorello LaGuardia Professor of Clinical Law, New York University School of Law. I am grateful tothe Florence D’Agostino and Max E. Greenberg Research Fund at New York University School of Law forfinancial support.
1
M
ARTIN
G
UGGENHEIM
,
 
W
HAT
S
W
RONG WITH
C
HILDREN
S
R
IGHTS
(2005).
2
Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
 
44 EMORY INTERNATIONAL LAW REVIEW [Vol. 20
I. T
HE
L
IMITS OF
R
IGHTS
D
ISCOURSE
,
 
P
ARTICULARLY IN
R
EGARDS TO
C
HILDREN
 Although I have plenty to say on the subject, my purpose in this article is toadvance only one quality of what is wrong with rights for children—that“rights” for children in the United States tend to be so malleable that theyalmost lack any content. Indeed, even though the Supreme Court prominentlyannounced nearly forty years ago that children have fundamental constitutionalrights,
3
many terrible things happen to children in the United States today, andthe Constitution has not proven to be effective in addressing these evils. Statedeven more provocatively, more than a generation after the Court explicitlystated that children have “rights,” children, in a variety of ways, are worse off today than ever before.
 A. The Allure of Rights
Children are inherently dependent, at least for significant periods of theirchildhood. Their status in almost every society is determined, monitored, andenforced by adults. Children lack political power, and the treatment theyreceive is, ultimately, little more than a reflection of the will of adults. Intothis set of truisms comes the call for “rights” belonging to children. The hopefor the use of this term is that children may obtain some trump cards withwhich to limit what adults do to them. In recent years, in many parts of theworld, including the United States, “children’s rights” has been widelyadvanced as the central part of an agenda to improve the plight of children.The growth of professional interest in this subject in the United States canbe measured by the frequency with which scholars talk about children’s rights.From 1973 through 1989, only 113 articles were published in legal literatureidentified by Westlaw as containing both the phrase “children’s rights” and thephrase “constitutional rights.” Between 1990 and 2005, 1,048 articles havebeen published that contain both of these phrases.
4
 This exponential growth in the interest in children’s rights is partly areflection of how many rights children are said to possess in the United States.Indeed, it is difficult to make the case that children in the United States lack rights. American children possess an abundance of rights. The largest number
3
In re
Gault, 387 U.S. 1, 19 (1967) (the adjudicatory phase of juvenile delinquency proceedings).
4
Westlaw search conducted on February 15, 2006.
 
2006] DON’T EXPECT ANY MIRACLES 45
and kinds of rights they possess are statutory in nature and commonly enactedby state and local legislatures. But even if we focus solely on rightsrecognized by the Supreme Court of the United States, children enjoy almostall of the rights that adults are guaranteed by the Constitution (albeit withqualifications that, as it turns out, sometimes swallow the rule).As the Supreme Court famously declared, “[c]onstitutional rights do notmature and come into being magically only when one attains the state-definedage of majority.”
5
The list of constitutional rights possessed by Americanchildren is long and familiar. Children enjoy all of the freedoms in the FirstAmendment, including freedom of speech,
6
press,
7
religion,
8
and assembly.
9
 They also have Fourth Amendment protections against unreasonable searchesand seizures.
10
 Juveniles accused in delinquency proceedings do not possess the FifthAmendment right to indictment by a grand jury,
11
but they are protected by thedouble jeopardy clause.
12
Most importantly, perhaps, they are protected by theFifth Amendment’s right not to be compelled to be a witness againstthemselves
13
and, more generally, are guaranteed the protection of due processof law.
14
Although accused delinquents are not guaranteed the SixthAmendment rights to a public or jury trial,
15
they are afforded most of theprotections secured by that amendment. In particular, they are entitled to freecourt-assigned counsel if they and their family are unable to afford to retain anattorney;
16
they also are entitled to notice of the charges lodged against themand to confront and cross-examine adverse witnesses.
17
Additionally, juveniles
5
Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976).
6
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969);
see
Ginsberg v. New York,390 U.S. 629, 635 (1968).
7
Hazelwood v. Kuhlmeier, 484 U.S. 260, 266 (1988).
8
Prince v. Massachusetts, 321 U.S. 158, 171–76 (1944) (Murphy, J., dissenting); Wisconsin v. Yoder,406 U.S. 205, 242–43 (1972) (Douglas, J., dissenting).
9
Hodgkins v. Peterson, 355 F.3d 1048, 1053 (7th Cir. 2004).
10
New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).
 But see
Vernonia Sch. Dist. 475 v. Acton, 515 U.S.646 (1995); Bd. of Educ. v. Earls, 536 U.S. 822 (2002).
11
In re
Kevin S., 6 Cal. Rptr. 3d 178, 188 (Cal. Ct. App. 2003).
12
Breed v. Jones, 421 U.S. 519, 527 (1975).
 
13
In re
Gault, 387 U.S. 1, 44 (1967).
14
Id.
at 30–31.
15
McKeiver v. Pennsylvania, 403 U.S. 528, 530 (1971).
16
Gault 
, 387 U.S. at 39.
17
Id.
at 41, 56–57.

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