Children and Rights

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This article
is excerpted from chapter 14 of The
Ethics of Liberty
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We
have now established
each man’s property right in his own person and in the virgin land
that he finds and transforms by his labor, and we have shown that
from these two principles we can deduce the entire structure of
property rights in all types of goods. These include the goods which
he acquires in exchange or as a result of a voluntary gift or bequest.

There remains,
however, the difficult case of children. The right of self-ownership
by each man has been established for adults, for natural self-owners
who must use their minds to select and pursue their ends. On the
other hand, it is clear that a newborn babe is in no natural sense
an existing self-owner, but rather a potential self-owner.[1]
But this poses a difficult problem: for when, or in what
way, does a growing child acquire his natural right to liberty and
self-ownership? Gradually, or all at once? At what age? And what
criteria do we set forth for this shift or transition?…

Even from birth,
the parental ownership is not absolute but of a “trustee” or guardianship
kind. In short, every baby as soon as it is born and is therefore
no longer contained within his mother’s body possesses the right
of self-ownership by virtue of being a separate entity and a potential
adult. It must therefore be illegal and a violation of the child’s
rights for a parent to aggress against his person by mutilating,
torturing, murdering him, etc. On the other hand, the very concept
of “rights” is a “negative” one, demarcating the areas of a person’s
action that no man may properly interfere with. No man can therefore
have a “right” to compel someone to do a positive act, for in that
case the compulsion violates the right of person or property of
the individual being coerced. Thus, we may say that a man has a
right to his property (i.e., a right not to have his property
invaded), but we cannot say that anyone has a “right” to
a “living wage,” for that would mean that someone would be coerced
into providing him with such a wage, and that would violate the
property rights of the people being coerced. As a corollary this
means that, in the free society, no man may be saddled with the
legal obligation to do anything for another, since that would invade
the former’s rights; the only legal obligation one man has to another
is to respect the other man’s rights.

Applying our
theory to parents and children, this means that a parent does not
have the right to aggress against his children, but also
that the parent should not have a legal obligation to feed,
clothe, or educate his children, since such obligations would entail
positive acts coerced upon the parent and depriving the parent of
his rights. The parent therefore may not murder or mutilate his
child, and the law properly outlaws a parent from doing so. But
the parent should have the legal right not to feed the
child, i.e., to allow it to die.[2]
The law, therefore, may not properly compel the parent to feed a
child or to keep it alive.[3]
(Again, whether or not a parent has a moral rather than
a legally enforceable obligation to keep his child alive is a completely
separate question.) This rule allows us to solve such vexing questions
as: should a parent have the right to allow a deformed baby to die
(e.g., by not feeding it)?[4]
The answer is of course yes, following a fortiori from
the larger right to allow any baby, whether deformed or
not, to die. (Though, as we shall see below, in a libertarian society
the existence of a free baby market will bring such “neglect” down
to a minimum.)

Our theory
also enables us to examine the question of Dr. Kenneth Edelin, of
Boston City Hospital, who was convicted in 1975 of manslaughter
for allowing a fetus to die (at the wish, of course, of the mother)
after performing an abortion. If parents have the legal right to
allow a baby to die, then a fortiori they have the same
right for extra-uterine fetuses. Similarly, in a future world where
babies may be born in extra-uterine devices (“test tubes”), again
the parents would have the legal right to “pull the plug” on the
fetuses or, rather, to refuse to pay to continue the plug in place.

Let us examine
the implications of the doctrine that parents should have
a legally enforceable obligation to keep their children alive. The
argument for this obligation contains two components: that the parents
created the child by a freely chosen, purposive act; and that the
child is temporarily helpless and not a self-owner.[5]
If we consider first the argument from helplessness, then first,
we may make the general point that it is a philosophical fallacy
to maintain that A’s needs properly impose coercive obligations
on B to satisfy these needs. For one thing, B’s rights are then
violated. Secondly, if a helpless child may be said to impose legal
obligations on someone else, why specifically on its parents,
and not on other people? What do the parents have to do with it?
The answer, of course, is that they are the creators of the child,
but this brings us to the second argument, the argument from creation.

Considering,
then, the creation argument, this immediately rules out any obligation
of a mother to keep a child alive who was the result of an act of
rape, since this was not a freely undertaken act. It also
rules out any such obligation by a stepparent, foster parent, or
guardian, who didn’t participate at all in creating the child.

Furthermore,
if creation engenders an obligation to maintain the child, why
should it stop when the child becomes an adult? As Evers states:

The parents
are still the creators of the child, why aren’t they obliged to
support the child forever? It is true that the child is no longer
helpless; but helplessness (as pointed out above) is not in and
of itself a cause of binding obligation. If the condition of being
the creator of another is the source of the obligation, and this
condition persists, why doesn’t the obligation?[6]

And what of
the case, in some future decade, when a scientist becomes able to
create human life in the laboratory? The scientist is then the “creator.”
Must he also have a legal obligation to keep the child alive? And
suppose the child is deformed and ill, scarcely human; does he still
have a binding legal obligation to maintain the child? And if so,
how much of his resources – his time, energy,
money, capital equipment – should he be legally required to
invest to keep the child alive? Where does his obligation stop,
and by what criterion?

This question
of resources is also directly relevant to the case of natural parents.
As Evers points out:

[L]et us
consider the case of poor parents who have a child who gets sick.
The sickness is grave enough that the parents in order to obtain
the medical care to keep the baby alive, would have to starve
themselves. Do the parents have an …obligation to lessen
the quality of their own lives even to the point of self-extinction
to aid the child?[7]

And if not,
we might add, at what point does the parents’ legal obligation
properly cease? And by what criterion? Evers goes on:

One might
want to argue that parents owe only the average minimal care (heat,
shelter, nutrition) necessary to keep a child alive. But, if one
is going to take the obligation position, it seems illogical –
in view of the wide variety of human qualities and characteristics
– to tie obligation to the Procrustean bed of the human average.[8]

A common argument
holds that the voluntary act of the parents has created a “contract”
by which the parents are obligated to maintain the child. But

  1. this would
    also entail the alleged “contract” with the fetus that would prohibit
    abortion, and

  2. this falls
    into all the difficulties with the contract theory as analyzed
    above.

Finally
as Evers points out, suppose that we consider the case of a person
who voluntarily rescues a child from a flaming wreck that kills
the child’s parents. In a very real sense, the rescuer has brought
life to the child; does the rescuer, then, have a binding legal
obligation to keep the child alive from then on? Wouldn’t this be
a “monstrous involuntary servitude that is being foisted upon a
rescuer?”[9]
And if for the rescuer, why not also for the natural parent?

The mother,
then, becomes at the birth of her child its “trustee-owner,” legally
obliged only not to aggress against the child’s person, since the
child possesses the potential for self-ownership. Apart from that,
so long as the child lives at home, it must necessarily come under
the jurisdiction of its parents, since it is living on property
owned by those parents. Certainly the parents have the right to
set down rules for the use of their home and property for all persons
(whether children or not) living in that home.

But when are
we to say that this parental trustee jurisdiction over children
shall come to an end? Surely any particular age (21,18, or whatever)
can only be completely arbitrary. The clue to the solution of this
thorny question lies in the parental property rights in their home.
For the child has his full rights of self-ownership when
he demonstrates that he has them in nature – in short,
when he leaves or “runs away” from home. Regardless of his age,
we must grant to every child the absolute right to run away and
to find new foster parents who will voluntarily adopt him, or to
try to exist on his own. Parents may try to persuade the runaway
child to return, but it is totally impermissible enslavement and
an aggression upon his right of self-ownership for them to use force
to compel him to return. The absolute right to run away is the child’s
ultimate expression of his right of self-ownership, regardless of
age.

Now if a parent
may own his child (within the framework of non-aggression and runaway
freedom), then he may also transfer that ownership to someone else.
He may give the child out for adoption, or he may sell the rights
to the child in a voluntary contract. In short, we must face the
fact that the purely free society will have a flourishing free market
in children. Superficially, this sounds monstrous and inhuman. But
closer thought will reveal the superior humanism of such a market.
For we must realize that there is a market for children now, but
that since the government prohibits sale of children at a price,
the parents may now only give their children away to a licensed
adoption agency free of charge.[10]
This means that we now indeed have a child-market, but that the
government enforces a maximum price control of zero, and restricts
the market to a few privileged and therefore monopolistic agencies.
The result has been a typical market where the price of the commodity
is held by government far below the free-market price: an enormous
“shortage” of the good. The demand for babies and children is usually
far greater than the supply, and hence we see daily tragedies of
adults denied the joys of adopting children by prying and tyrannical
adoption agencies. In fact, we find a large unsatisfied demand by
adults and couples for children, along with a large number of surplus
and unwanted babies neglected or maltreated by their parents. Allowing
a free market in children would eliminate this imbalance, and would
allow for an allocation of babies and children away from
parents who dislike or do not care for their children, and toward
foster parents who deeply desire such children. Everyone
involved: the natural parents, the children, and the foster parents
purchasing the children, would be better off in this sort of society.[11]

In the libertarian
society, then, the mother would have the absolute right to her own
body and therefore to perform an abortion; and would have the trustee-ownership
of her children, an ownership limited only by the illegality of
aggressing against their persons and by their absolute right to
run away or to leave home at any time. Parents would be able to
sell their trustee-rights in children to anyone who wished to buy
them at any mutually agreed price.

The present
state of juvenile law in the United States, it might be pointed
out, is in many ways nearly the reverse of our desired libertarian
model. In the current situation, both the rights of parents and
children are systematically violated by the State.[12]

First, the
rights of the parents. In present law, children may be seized from
their parents by outside adults (almost always, the State) for a
variety of reasons. Two reasons, physical abuse by the parent and
voluntary abandonment, are plausible, since in the former case the
parent aggressed against the child, and in the latter the parent
voluntarily abandoned custody. Two points, however, should be mentioned:

  1. that, until
    recent years, the parents were rendered immune by court decisions
    from ordinary tort liability in physically aggressing against
    their children – fortunately, this is now being remedied;[13]
    and

  2. despite
    the publicity being given to the “battered child syndrome,” it
    has been estimated that only 5 percent of “child abuse” cases
    involve physical aggression by the parents.[14]

On the other
hand, the two other grounds for seizing children from their parents,
both coming under the broad rubric of “child neglect,” clearly violate
parental rights. These are: failure to provide children with the
“proper” food, shelter, medical care, or education; and failure
to provide children with a “fit environment.” It should be clear
that both categories, and especially the latter, are vague enough
to provide an excuse for the State to seize almost any children,
since it is up to the State to define what is “proper” and “fit.”
Equally vague are other, corollary, standards allowing the State
to seize children whose “optimal development” is not being promoted
by the parents, or where the “best interests” of the child (again,
all defined by the State) are promoted thereby.

A
few recent cases will serve as examples of how broadly the seizure
power has been exercised. In the 1950 case of In re Watson,
the state found a mother to have neglected three children by virtue
of the fact that she was “incapable by reason of her emotional status,
her mental condition, and her allegedly deeply religious feelings
amounting to fanaticism.” In its decision, fraught with totalitarian
implications, the court stressed the alleged obligation of parents
to bring up children respecting and adjusting to “the conventions
and the mores of the community in which they are to live.”[15]
In 1954, in the case of Hunter v. Powers, the court again
violated religious freedom as well as parental rights by seizing
a child on the ground that the parent was too intensely devoted
to a nonconformist religion, and that the child should properly
have been studying or playing, rather than passing out religious
literature. A year later, in the case of In re Black, a Utah
court seized eight children from their parents because the parents
had failed to teach the children that polygamy was immoral.[16]

Not only religion,
but also personal morality has been dictated by the government.
In 1962, five children were seized from their mother by a court
on the ground that the mother “frequently entertained male companions
in the apartment.” In other cases, courts have held parents to have
“neglected” the child, and thereupon seized the child, because parental
quarrelling or a child’s sense of insecurity allegedly endangered
the child’s best interests.

In a recent
decision, Justice Woodside of the Pennsylvania Superior Court trenchantly
warned of the massive coercive potential of the “best interest”
criterion:

A court should
not take the custody of a child from their parents solely on the
ground that the state or its agencies can find a better home for
them. If “the better home” test were the only test, public welfare
officials could take children from half the parents in the state
whose homes are considered to be the less desirable and place
them in the homes of the other half of the population considered
to have the more desirable homes. Extending this principle further,
we would find that the family believed to have the best home would
have the choice of any of our children.[17]

The rights
of children, even more than those of parents, have been systematically
invaded by the state. Compulsory school attendance laws, endemic
in the United States since the turn of this century, force children
either into public schools or into private schools officially approved
by the state.[18]
Supposedly “humanitarian” child labor laws have systematically forcibly
prevented children from entering the labor force, thereby privileging
their adult competitors. Forcibly prevented from working and earning
a living, and forced into schools which they often dislike or are
not suited for, children often become “truants,” a charge used by
the state to corral them into penal institutions in the name of
“reform” schools, where children are in effect imprisoned for actions
or non-actions that would never be considered “crimes” if committed
by adults.

It has, indeed,
been estimated that from one-quarter to one-half of “juvenile delinquents”
currently incarcerated by the state did not commit acts that would
be considered crimes if committed by adults (i.e., aggression against
person and property).[19]
The “crimes” of these children were in exercising their freedom
in ways disliked by the minions of the state: truancy, “incorrigibility,”
running away. Between the sexes, it is particularly girl children
who are jailed in this way for “immoral” rather than truly criminal
actions. The percentage of girls jailed for immorality (“waywardness,”
sexual relations) rather than for genuine crimes ranges from 50
to over 80 percent.[20]

Since the U.S.
Supreme Court’s decision in the 1967 case of In re Gault,
juvenile defendants, at least in theory, have been accorded the
elementary procedural rights of adults (the right to notice of specific
charges, the right to counsel, the right to cross-examine witnesses),
but these have only been granted in cases where they have
actually been accused of being criminals. As Beatrice Levidow
writes, the Gault and similar decisions:

do not apply
to any adjudicatory hearings except those in which the offense
charged to the juvenile would be violation of the criminal laws
if committed by an adult. Therefore, the safeguards of Kent,
Gault, and Winship do not protect the due process
rights of juveniles who are dependent, neglected, in need of supervision,
truant, run away, or accused of other offenses of which only juveniles
can be guilty such as smoking, drinking, staying out late, etc.[21]

As a result,
juveniles are habitually deprived of such elemental procedural rights
accorded to adult defendants as the right to bail, the right to
a transcript, the right to appeal, the right to a jury trial, the
burden of proof to be on the prosecution, and the inadmissibility
of hearsay evidence. As Roscoe Pound has written, “the powers of
the Star Chamber were a trifle in comparison with those of our juvenile
courts.” Once in a while, a dissenting judge has levelled a trenchant
critique of this system. Thus, Judge Michael Musmanno stated in
a 1954 Pennsylvania case:

Certain constitutional
and legal guarantees, such as immunity against self-incrimination,
prohibition of hearsay interdiction of ex parte and secret reports,
all so jealously upheld in decisions from Alabama to Wyoming,
are to be jettisoned in Pennsylvania when the person at the bar
of justice is a tender-aged boy or girl.[22]

Furthermore,
the state juvenile codes are studded with vague language that permits
almost unlimited trial and incarceration for various forms of “immorality,”
“habitual truancy,” “habitual disobedience,” “incorrigibility,”
“ungovernability,” “moral depravity,” “in danger of becoming morally
depraved,” “immoral conduct,” and even associating with persons
of “immoral character.”[23]

Moreover, the
tyranny of indeterminate sentencing (see
our chapter above on punishment
) has been wielded against juveniles,
with juveniles often receiving a longer sentence than an adult would
have suffered for the same offense. Indeed the rule in contemporary
juvenile justice has been to impose a sentence that may leave a
juvenile in jail until he reaches the age of majority. Furthermore,
in some states in recent years, this evil has been compounded by
separating juvenile offenders into two categories – genuine
criminals who are called “delinquents,” and other, “immoral” children
who are called “persons in need of supervision” or PINS. After which,
the PINS “offenders” receive longer sentences than the actual juvenile
criminals! Thus, in a recent study, Paul Lerman writes:

The range
of institutional stay was two to twenty-eight months for delinquents
and four to forty-eight months for PINS boys; the median was nine
months for delinquents and thirteen months for PINS; and the average
length of stay was 10.7 months for delinquents and 16.3 months
for PINS….

The results
of length of stay do not include the detention period; the stage
of correctional processing prior to placement in an institution.
Analyses of recent detention figures for all five boroughs of
New York City revealed the following patterns: (1) PINS boys and
girls are more likely to be detained than delinquents (54 to 31
percent); and (2) once PINS youth are detained they are twice
as likely to be detained for more than 30 days than are regular
delinquents (50 to 25 percent).[24]

Again, it is
mainly female juveniles that are punished for “immoral”
offenses. A recent study of Hawaii, for example, found that girls
charged merely with running away normally spend two weeks in pretrial
detention, whereas boys charged with actual crimes are held for
only a few days; and that nearly 70 percent of the imprisoned girls
in a state training school were incarcerated for immorality offenses,
whereas the same was true of only 13 percent for the imprisoned
boys.[25]

The current
judicial view, which regards the child as having virtually no rights,
was trenchantly analyzed by Supreme Court Justice Abe Fortas in
his decision in the Gault case:

The idea
of crime and punishment was to be abandoned. The child was to
be “treated” and “rehabilitated" and the procedures, from
apprehension through institutionalization, were to be “clinical”
rather than punitive.

These results
were to be achieved, without coming to conceptual and constitutional
grief, by insisting that the proceedings were not adversary, but
that the State was proceeding as parens patriae (the
State as parent). The Latin phrase proved to be a great help to
those who sought to rationalize the exclusion of juveniles from
the constitutional scheme; but its meaning is murky and its historical
credentials are of dubious relevance.

…The
right of the State, as parens patriae, to deny the child
procedural rights available to his elders was elaborated by the
assertion that a child, unlike an adult, has a right “not to liberty
but to custody.” …If his parents default in effectively
performing their custodial functions – that is if the child
is “delinquent” – the state may interfere. In doing so, it
does not deprive the child of any rights, because he has none.
It merely provides the “custody” to which the child is entitled.
On this basis, proceedings involving juveniles were described
as “civil” not “criminal” and therefore not subject to the requirements
which restrict the State when it seeks to deprive a person of
his liberty.[26]

It may be added
that calling an action “civil” or “custody” does not make incarceration
any more pleasant or any less incarceration for the victim of the
“treatment” or the “rehabilitation.” Criminologist Frederick Howlett
has trenchantly criticized the juvenile court system, and placed
it in a wider libertarian context. He writes of

the denial
of certain basic rights of individuals – the right to associate
with those of their choice and to engage voluntarily in acts that
harm no one but themselves. The drunk who clogs our courts should
have the right to get drunk; the …prostitute and her client
should not have to answer to the law for an act that is their
personal decision. The misbehaving child likewise has a fundamental
right to be a child, and if he has committed no act that would
be considered criminal were he an adult, why seek recourse through
the courts …? Before rushing to treat or “help” a person
outside the justice system, should not the community first consider
the alternative of doing nothing? Should it not recognize the
child’s right, as a person, to nontreatment and noninterference
by an outside authority?[27]

A particularly
eloquent judicial defense of the rights of children occurred in
an 1870 Illinois decision, years earlier than the modern assertion
of state despotism in the juvenile court system, beginning with
the turn of the century Progressive period. In his decision in People
ex rel. O’Connell v. Turner, Justice Thornton declared:

The principle
of the absorption of the child in, and its complete subjection
to the despotism of, the State, is wholly inadmissible in the
modern civilized world….

These laws
provide for the “safe keeping” of the child; they direct his “commitment,”
and only a “ticket of leave,” of the uncontrolled discretion of
a board of guardians, will permit the imprisoned boy to breathe
the pure air of heaven outside his prison walls, and to feel the
instincts of manhood by contact with the busy world…. The
confinement may be from one to fifteen years, according to the
age of the child. Executive clemency cannot open the prison doors,
for no offense has been committed. The writ of habeas corpus,
a writ for the security of liberty can afford no relief, for the
sovereign power of the State, as parens patriae, has
determined the imprisonment beyond recall. Such a restraint upon
natural liberty is tyranny and oppression. If, without crime,
without the conviction of any offense, the children of the State
are thus to be confined for the “good of society” then society
had better be reduced to its original elements, and free government
acknowledged a failure….

The disability
of minors does not make slaves or criminals of them…. Can
we hold children responsible for crime; liable for their torts;
impose onerous burdens upon them, and yet deprive them of their
liberty, without charge or conviction of crime? [The Illinois
Bill of Rights, following upon the Virginia Declaration of Rights
and the Declaration of Independence, declares that] “all men are,
by nature, free and independent, and have certain inherent and
inalienable rights – among these life, liberty, and the pursuit
of happiness.” This language is not restrictive; it is broad and
comprehensive, and declares a grand truth, that “all men,” all
people, everywhere, have the inherent and inalienable right to
liberty. Shall we say to the children of the State, you shall
not enjoy this right – a right independent of all human laws
and regulations…. Even criminals cannot be convicted and
imprisoned without due process of law.[28]

Notes

[1]
John Locke, in his Two
Treatises on Government
, p. 322, put it this way:

Children
I confess are not born in this full state of equality (of right
to their natural freedom), though they are born to it. Their parents
have a sort of rule and jurisdiction over them when they come
into the world, and for some time after, but ’tis but a temporary
one. The bonds of this subjection are like the swaddling clothes
they are wrapt up in, and supported by, in the weakness of their
infancy. Age and reason as they grow up, loosen them till at length
they drop quite off, and leave a man at his own free disposal.

[2]
On the distinction between passive and active euthanasia, see Philippa
R. Foot, Virtues
and Vices
(Berkeley: University of California Press, 1978),
pp. 50ff.

[3]
Cf. the view of the individualist anarchist theorist Benjamin
R. Tucker
: “Under equal freedom, as it [the child] develops
individuality and independence, it is entitled to immunity from
assault or invasion, and that is all. If the parent neglects to
support it, he does not thereby oblige anyone else to support it.”
Benjamin R. Tucker, Instead
of a Book
(New York: B.R. Tucker, 1893), p. 144.

[4]
The original program of the Euthanasia Society of America included
the right of parents to allow monstrous babies to die. It has also
been a common and growing practice for midwives and obstetricians
to allow monstrous babies to die at birth by simply not taking positive
acts to keep them alive. See John A. Robertson, “Involuntary Euthanasia
of Defective Newborns: A Legal Analysis,” Stanford Law Review
(January 1975): 214–15.

[5]
The argument of this and succeeding paragraphs relies heavily on
Williamson M. Evers, “Political Theory and the Legal Rights of Children,”
(unpublished manuscript), pp. 13–17. Also see Evers, “The Law of
Omissions and Neglect of Children,” Journal of Libertarian Studies
2 (Winter 1978): 1–10 (PDF).

[6]
Evers, “Political Theory,” p. 17.

[7]
Ibid., p. 16.

[8]
Ibid., pp. 16–17.

[9]
Ibid., pp. 15–16.

[10]
It is now possible to make “independent placements” from one parent
to another, but they can only be done with the approval of a judge,
and such placements are officially discouraged. Thus, in Petitions
of Goldman, the Supreme Court of Massachusetts refused to permit
a Jewish couple to adopt twins born to Catholic parents, even though
the natural parents were fully agreeable to the adoption. The ground
of the refusal was that state regulations forbade cross-religious
adoptions. See Lawrence List, “A Child and a Wall: A Study of ‘Religious
Protection’ Laws,” Buffalo Law Review (1963–64): 29; cited
in Evers, “Political Theory,” pp. 17–18.

[11]
Some years ago, the New York City authorities proudly announced
that they had broken up an “illegal baby ring.” Babies were being
imported for a price from Greece by enterprising merchants, and
then sold to eager parents in New York. No one seemed to realize
that everyone involved in this supposedly barbaric transaction benefited:
the poverty-stricken Greek parents gained money, as well as the
satisfaction of knowing that their babies would be brought up in
far more affluent homes; the new parents gained their heart’s desire
of having babies; and the babies were transferred to a far happier
environment. And the merchants earned their profits as middlemen.
Everyone gained; who lost?

[12]
On the current state of juvenile law in relation to the libertarian
model, I am indebted to Evers, “Political Theory,” passim.

[13]
Immunity was originally granted parents in the 1891 decision of
a Mississippi court in Hewlett v. Ragsdale. Recently, however,
courts have been allowing children their full rights to sue for
injuries. See Lawrence S. Allen, “Parent and Child-Tort Liability
of Parent to Unemancipated Child,” Case Western Reserve Law
Review (November 1967): 139; Dennis L. Bekemeyer, “A Child’s
Rights Against His Parent: Evolution of the Parental Immunity Doctrine,”
University of Illinois Law Forum (Winter 1967): 806–7;
and Kenneth D. McCloskey, “Parental Liability to a Minor Child for
Injuries Caused by Excessive Punishment,” Hastings Law Journal
(February 1960): 335–40.

[14]
Thus, see the report for Cook County in Patrick T. Murphy, Our
Kindly Parent – the State
(New York: Viking Press,
1974), pp. 153–54.

[15]
Compare the dictum of Sanford Katz, a prominent “child abuse” specialist:
“child neglect connotes a parent’s conduct, usually thought of in
terms of passive behavior, that results in a failure to provide
for the child’s needs as defined by the preferred values of the
community.” Sanford Katz, When
Parents Fail
(Boston: Beacon Press, 1971), p. 22. On parental
quarrelling, and on In re Watson, see Michael F. Sullivan,
“Child Neglect: The Environmental Aspects,” Ohio State Law Journal
(1968): 89–90,152–53.

[16]
See Sullivan, “Child Neglect,” p. 90.

[17]
Quoted in Richard S. Levine, “Caveat Parens: A Demystification of
the Child Protection System,” University of Pittsburgh
Law Review (Fall 1973): 32. Even more bizarre and totalitarian
in its implications is the often proposed concept of a child’s “right
to be wanted.” Apart from the impossibility of using violence to
enforce an emotion on someone else, such a criterion would arm outside
parties, in practice the State, with the power to determine when
“wanting” exists and to seize children from parents who don’t meet
that scarcely definable criterion. Thus, Hillary Rodham, of the
Children’s Defense Fund, has challenged this criterion: “How should
a ‘right to be wanted’ be defined and enforced? …The necessarily
broad and vague enforcement guidelines could recreate the hazard
of current laws, again requiring the State to make broad discretionary
judgments about the quality of a child’s life.” Hillary Rodham,
“Children Under the Law,” Harvard Educational Review (1973):
496.

[18]
On compulsory education in the United States, see William F. Rickenbacker,
ed., The
Twelve-Year Sentence
(LaSalle, Ill.: Open Court, 1974).

[19]
See William H. Sheridan, “Juveniles Who Commit Noncriminal Acts:
Why Treat in a Correctional System?” Federal Probation
(March 1967): 27. Also see Murphy, Our Kindly Parent, p.
104.

[20]
In addition to Sheridan, “Juveniles Who Commit Noncriminal Acts,”
p. 27, see Paul Lerman, “Child Convicts,” Transaction (July–August
1971): 35; Meda Chesney-Lind, “Juvenile Delinquency: The Sexualization
of Female Crime,” Psychology Today (July 1974): 45; Colonel
F. Betz, “Minor’s Rights to Consent to an Abortion,” Santa Clara
Lawyer (Spring 1971): 469–78; Ellen M. McNamara, “The Minor’s
Right to Abortion and the Requirement of Parental Consent,” Virginia
Law Review (February 1974): 30532; and Sol Rubin, “Children
as Victims of Institutionalization,” Child Welfare (January
1972): 9.

[21]
Beatrice Levidow, “Overdue Process for Juveniles: For the Retroactive
Restoration of Constitutional Rights,” Howard Law Journal
(1972): 413.

[22]
Quoted in J. Douglas Irmen, “Children’s Liberation – Reforming
Juvenile Justice,” University of Kansas Law
Review (1972–73): 181–83. Also see Mark J. Green, “The Law
of the Young,” in B. Wasserstein and M. Green, eds., With
Justice for Some
(Boston: Beacon Press, 1970), p. 33; Sanford
J. Fox, Cases
and Material on Modern Juvenile Justice
(St. Paul, Minn.:
West, 1972), p. 68.

[23]
See the dissent of Justice Cadena in the 1969 Texas case of E.S.G.
v. State, in Fox, Cases
and Material on Modern Juvenile Justice
, pp. 296–98. Also
see Lawrence J. Wolk, “Juvenile Court Statutes – Are They Void
for Vagueness?” New York University Review of Law and Social
Change (Winter 1974): 53; Irmen, “Children’s Liberation,” pp.
181–83; and Lawrence R. Sidman, “The Massachusetts Stubborn Child
Law: Law and Order in the Home,” Family Law Quarterly (Spring
1972): 40–45.

[24]
Lerman, “Child Convicts,” p. 38. Also see Nora Klapmuts, “Children’s
Rights: The Legal Rights of Minors in Conflict with Law or Social
Custom,” Crime and Delinquency Literature (September 1972):
471.

[25]
Meda Chesney-Lind, “Juvenile Delinquency,” p. 46.

[26]
Fox, Cases and Material on Modern Juvenile Justice, p.
14.

[27]
Frederick W. Howlett, “Is the YSB All it’s Cracked Up to Be?” Crime
and Delinquency (October 1973): 489–91. In his excellent book,
The
Child Savers
, Anthony Platt points out that the origin
of the juvenile court – reform school system in the Progressive
period at the turn of the twentieth century, was specifically designed
to impose a despotic “reform” on the “immorality” of the nation’s
children on a massive scale. Thus, Platt in The Child Savers
(Chicago: University of Chicago Press, 1970), pp. 99–100, writes
that the “child savers”

were most
active and successful in extending governmental control over a
whole range of youthful activity that had been previously ignored
or dealt with informally…. The child savers were prohibitionists
in a general sense who believed that social progress depended
on efficient law enforcement, strict supervision of children’s
leisure and recreation, and the regulation of illicit pleasures.
Their efforts were directed at rescuing children from institutions
and situations (theaters, dance halls, saloons, etc.) which threatened
their “dependency.” The child saving movement also raised the
issue of child protection in order to challenge a variety of “deviant”
institutions: thus, children could only be protected from sex
and alcohol by destroying the brothels and saloons.

Also
see ibid., pp. 54, 67–68, 140. For earlier expressions of “child-saving,”
parens patriae, and the incarceration of juveniles for
truancy, see J. Lawrence Schultz, “The Cycle of Juvenile Court History,”
Crime and Delinquency (October 1973): 468; and Katz, When
Parents Fail, p. 188.

[28]
55 Ill. 280 (1870), reprinted in Robert H. Bremner, ed., Children
and Youth in America
(Cambridge, Mass.: Harvard University
Press, 1970–74), vol. 2, pp. 485–87. Naturally, the “child saving”
reformers chafed at the results of the O’Connell decision,
which the prominent Illinois social and child reformer Frederick
Wines called “positively injurious. It proceeds from a morbid sensitivity
on the subject of personal liberty.” See Platt, The Child Savers,
p. 106.

Murray
N. Rothbard
(1926–1995) was the author of Man,
Economy, and State
, Conceived
in Liberty
, What
Has Government Done to Our Money
, For
a New Liberty
, The
Case Against the Fed
, and many
other books and articles
. He was
also the editor – with Lew Rockwell – of The
Rothbard-Rockwell Report
.

Murray
Rothbard Archives

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