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Here's What Hillary Clinton Actually Wrote. . . .

THE BALTIMORE SUN

"Hillary believes that 12-year-olds have a right to sue their parents, and she has compared marriage as an institution to slavery - and life on an Indian reservation."

Pat Buchanan

"If you're out there on issues, taking your case to the people on issues, and you have an activist past, and you're a very aggressive lawyuer, that is a little different than if you're not taking positions."

George Bush

"Will the campaign continue to identify Hillary Clinton as the Winnie Mandela of American politics."

Charlton Heston

"No one can convince me that tha American people are so blind that they would replace Barbara Bush with Hillary Clinton."

Pat Robertson

Several speakers at last week's Republican convention criticized Hillary Clinton's views on marriage and the family. Much of the criticism was apparently based on an article she wrote in 1973. She was then Hillary Rodham, an assistant professor of law at the University of Arkansas who had worked with the Children's Defense Fund, an advocacy group. Entitled "Children Under the Law," the article appeared in the November 1973 issue of Harvard Educational Review. That issue and the one following were special issues devoted to the rights of children.

Defenders of Hillary Clinton have said the views cited by Republican critics were distorted and taken out of context. Both critics and defenders have generally quoted only a few sentences. So the reader can judge the context, here are excerpts from the article. (The article itself filled 28 pages and contained 98 footnotes.) It begins, as articles in academic journals generally do, with an "abstract," a brief summary of the article prepared by the author and/or journal editor.

Children's Defense Fund

The author examines the changing status of children under the law. Traditionally, the law has reflected a social consensus that children's best interests are synonymous with those of their parents, except under the few circumstances where the state is authorized to intervene in family life under the doctrine of parens patriae. Little consideration has been given to the substantive and procedural rights of children as a discrete interest group. At present, law reform is moving to change children's legal status in two ways: by extending more adult rights to children and by recognizing certain unique needs and interests of children as legally enforceable rights. Ms. Rodham summarizes recent Supreme Court decisions which will influence changes of both kinds, and suggests specific directions reform might take.

The phrase "children's rights" is a slogan in search of definition. Invoked to support such disparate causes as world peace, constitutional guarantees for delinquents, affection for infants, and lowering the voting age, it does not reflect any coherent doctrine regarding the status of children as political beings. Asserting that children are entitled to rights and enumerating their needs does not clarify the difficult issues regarding children's legal status. These issues of family autonomy and privacy, state responsibility, and children's independence are complex, but they determine how children are treated by the nation's legislatures, courts, and administrative agencies.

This paper briefly sets out the legal conception of children's status underlying American public policy and case law, and suggests various ways in which this conception needs major revision. There are important new themes emerging in the interpretation of children's status under the law, and several new directions which future litigation and legislation in the interest of children might take. Of particular interest in the trend toward recognizing children's needs and interests as rights under the law.

Attributing a right to a person may involve describing an existing relationship or prescribing the formation of a new one. The prescriptive aspect of right represents a moral judgment about how particular interests should be ordered so that certain ones will be given priority over others. The recent literature on children's rights is filled with such prescriptions, based on arguments from political, legal, and moral philosophy. Rarely, however, do the writers mention the important differences between an existing legal right and other claims of right. A legal right is an enforceable claim to the possession of property or authority, or to the enjoyment of privileges or immunities. Moral prescriptions and political demands, on the other hand, are not formally recognized by the law and have the status of needs or interests, not rights. Adult Americans enjoy the legal rights set forth in the Constitution, statutes, regulations, and the common law of the federal and state governments. Child citizens, although their needs and interests may be greater than those of adults, have far fewer legal rights (and duties). Indeed, the special needs and interests which distinguish them from adults have served as the basis for not granting them rights and duties, and for entrusting enforcement of the few rights they have to institutional decision-makers. . . .

The needs and interests of a powerless individual must be asserted as rights if they are to be considered and eventually accepted as enforceable claims against other persons or institutions. The advocacy of rights for children, coming as it does on the heels of adult rights movements, highlights the political nature of questions about children's status. That children's issues are political may seem obvious. Political theorists from Plato onward have sought to specify proper child-rearing practices and have discussed the proper position of children within society, often coming to conclusions inconsistent with the prevailing American ones. In the United States, the problems of children have usually been explained without any consideration of children's proper political status. Accordingly, the obstructionist role of the unstated consensus and the law reflecting it has seldom been appreciated. The pretense that children's issues are somehow above or beyond politics endures and is reinforced by the belief that families are private, non-political units whose interests subsume those of children. There is also an abiding belief that any official's failure to do what is best by a child is the exception, not the rule, and is due solely to occasional errors of judgment. Moreover, nothing countervails against this pattern, since children are almost powerless to articulate their own interests or to organize themselves into a self-interested constituency and adults allied with them have seldom exerted an appreciable influence within the political system.

The basic rationale for depriving people of rights in a dependency relationship is that certain individuals are incapable undeserving of the right to take care of themselves and consequently need social institutions specifically designed to safeguard their position. It is presumed that under the circumstances society is doing what is best for the individuals. Along with the family, past and present examples of such arrangements include marriage, slavery, and the Indian reservation system. The relative powerlessness of children makes them uniquely vulnerable to this rationale. Except for the institutionalized, who live in a state of enforced childishness, no other group is so totally dependent for its well-being on choices made by others. Obviously, this dependency can be explained to a significant degree by the physical, intellectual, and psychological capacities of (some) children which render them weaker than (some) older persons. But the phenomenon must also be seen as part of the organization and ideology of the political system itself. Lacking even the basic power to vote, children are not able to exercise normal constituency powers, articulating self-interests to politicians and working toward specific goals. Young children in particular are probably not capable of organizing themselves into a political group; they must always be represented either by their parents or by established governmental or community groups organized to lobby, litigate, and exhort on their behalf. The causes of younger children have not fared well, partly because these representatives have loyalties diluted by conflicts between children's rights and their own institutional and professional goals. Older children have organized themselves politically with some success, especially on the issues of the eighteeen-year-old vote, civil liberties of school students, and anti-war activities, but they too have relied heavily on the suppoprt of adults. "Successful" reforms on behalf of children -- the establishment of juvenile courts, the institution of public schooling, the passage of child labor laws -- were effected only after vigorous political struggles.

While these legal reforms may now seem, in the light of revisionist histories, to have been catalyzed by questionable motives, they did give children certain legally enforceable rights not previously held. Moreover, these reforms signalled some change in general public attitudes about children. Whenever reforms have been enacted, however, the rights they provide are those which the state decides are in the best interests of the public and the child. Age and ability differences have not been entirely ignored, but the use of chronological dividing lines to mark legal distinctions has continued. Nor has the child been given any choice in the exercise of his rights; they are compulsory, not susceptible to waiver. Thus all children below a certain age are forbidden to work, regardless of individual aptitude, desire, and need. Similarly, all children below a certain age are required to attend school. Finally, the institutions created to embody and enforce these rights are endowed with essentially unchecked discretion. Therefore, even though special judicial proceedings, exemption from work, and compulsory attendance are all rights in the strict sense of legally enforceable claims against the state or third persons, neither their rationales nor their implementation provide models for the rights movement.

Present claims of right follow two general approaches: advocating the extension of adult rights to children, and seeking legally enforceable recognition of children's special needs and interests. The first approach is exemplified by proposals for extending all the rights of adult criminal defendants to accused delinquents, proposals for empowering children to request medical care without parental consent, and proposals for providing a child with legal representation in any situation where his interests are affected. . . .

The second approach to children's rights begins with the belief that even if all adult rights were granted to children and were strictly enforced, this would not guarantee that certain critical needs unique to children would be met. This line of reasoning is reflected in various bills of rights which have been proposed for children, each unveiling a blueprint for the child's fullest development. These "need manifestos" proclaim the rights of children to adequate nutrition, a healthy environment, continuous loving care, a sympathetic community, intellectual and emotional stimulation, and other prerequisites for a healthy adulthood. . . . Even though such rights are beginning to achieve some recognition, particularly in judicial decisions concerning education and psychological treatment, their scope and content raise troublesome questions. Given the great difficulty of specifying psychological prerequisites and devising workable governmental responses for meeting them, a distinction should perhaps be made between claims focusing on psychological needs and those specifying physical ones, because the latter are more easily defined. Many of us might agree that a child should have the right to "grow up in a world free of war," or to live in a "reconstituted society," but who should the law hold responsible for seeing that those rights are enforced? Or, how should a "right to be wanted" be defined and enforced? Doubtless there are definitions of these socio-psychological rights, but if the law attmepted to incorporate them, the necessarily broad and vague enforcement guidelines could recreate the hazards of current laws, again requiring the state to make broad discretionary judgments about the quality of a child's life. . . .

Securing children's rights through the legislatures and the courts will include generating new lines of legal theory, grounded in past-precedent but building on it to more reasonable laws and legal interpretations in the future. Certain interesting legal theories have been introduced already, which are being utilized by children's rights advocates in pressing further claims, and which, if accepted, could resolve the theoretical problems outlined above. While the resolution of theoretical problems may not eliminate the main obstacles to the enforcement of children's legal rights or the creation of services to meet their needs, it will at least strip away the legalistic camouflage surrounding the continuing problems of unchecked discretion, inadequate

resources, and widespread public indifference.

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