Children's rights and a capabilities approach: The question of special priority

Cornell Law Review

Volumn 97, Issue 3, 2012, Pages 549-593

  Dixon, Rosalind ^a   Nussbaum, Martha C ^b  

^a UNIVERSITY OF CHICAGO   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

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[No Author keywords available]

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EID: 84860354797     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (244)

1. See, e.g., United States v. Virginia, 518 U. S. 515, 557 (1996) (noting that "[a] prime part" of the United States' constitutional history is the "story of the extension of constitutional rights and protections to people once ignored or excluded" (footnote and internal citation omitted)).
2. See, e.g., Barbara Bennett Woodhouse, The Changing Status of the Child, in THE U. N. CONVENTION ON THE RIGHTS OF THE CHILD: AN ANALYSIS OF TREATY PROVISIONS AND IMPLICATIONS OF U. S. RATIFICATION 51, 52 (Jonathan Todres et al. eds., 2006) (explaining that nineteenth-century children were "subject to virtually unlimited parental authority" and that children's legal rights were "the mirror image of parental obligations").
3. See, e.g., 1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 28-29 (R. H. Campbell & A. S. Skinner eds., Liberty Fund 1981) (1776) (stressing the importance of early education);
4. see Martha C. Nussbaum, Foreword, Constitutions and Capabilities: "Perception" Against Lofty Formalism, 121 HARV. L. REV. 4, 8, 55 (2007) [hereinafter Nussbaum, Constitutions and Capabilities] (discussing the British political philosopher T. H. Green who supported various social legislation initiatives, including bills for free compulsory education);
5. Diane P. Wood, Constitutions and Capabilities: A (Necessarily) Pragmatic Approach, 10 CHI. J. INT'L L. 415, 415 (2010) (exploring Nussbaum's view that "a society's constitution ought to include provisions designed to develop human capabilities").
6. See A. GLENN MOWER, JR., THE CONVENTION ON THE RIGHTS OF THE CHILD: INTERNATIONAL LAW SUPPORT FOR CHILDREN 13 (1997).
7. International Covenant on Civil and Political Rights, Dec. 19, 1966, S. TREATY. DOC. No. 95-20 (1978)
8. 999 U. N. T. S. 171 [hereinafter ICCPR];
9. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. TREATY DOC. No. 95-19 (1978), 993
10. U. N. T. S. 3 [hereinafter ICESCR].
11. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 [hereinafter CROC];
12. see also David Weissbrodt, Prospects for Ratification of the Convention on the Rights of the Child, 20 EMORY INT'L L. REV. 209, 209-10 (2006) (noting that CROC is the most quickly ratified human rights treaty to date and that since then "children's rights have come to the forefront of human rights").
13. Brown v. Bd. of Educ., 347 U. S. 483, 493 (1954) (noting that where a state or local government has chosen to provide education, it "is a right which must be made available to all on equal terms"). India's constitution came into force on January 26, 1950.
14. Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000), 14 AM. U. INT'L L. REV. 413, 416 n. 7 (1998). For even earlier recognition of the right
15. see IR. CONST., 1937, art. 42 (requiring the state to provide for free primary education and to require that "children receive a certain minimum education, moral, intellectual and social").
16. CONSTITUIÇÃO FEDERAL [C. F.] [CONSTITUTION] art. 227 (Braz.) (calling it a familial, societal, and governmental duty to provide children with health and education and protect them from discrimination and violence);
17. CONSTITUCIÓN POLÍTICA DE COLOMBIA [C. P.] art. 42 (stating that children born outside of a marriage, conceived with scientific assistance, or adopted have the same rights and duties as children born within a marriage or conceived naturally);
18. CONSTITUCIÓN POLÍTICA DE LA REPÚBLICA DE HONDURAS, 1982, ch. IV, arts. 119-26 (detailing the rights of children);
19. S. AFR. CONST., 1996, § 28(1) (listing the rights of children, including the right to a name and a nationality). Other constitutions provide similar protection by implicit incorporation of CROC.
20. See, e.g., E. TIMOR CONST., 2002, § 18(2) (stating that children shall enjoy all rights "enshrined in international conventions commonly ratified⋯ by the State"). East Timor has ratified CROC.
21. See CHILD RIGHTS COALITION ASIA, http://www.childrightscoalitionasia.org/ southeast-asia/east-timor (last visited Nov. 13, 2011) (listing international human rights instruments ratified by East Timor).
22. See further discussion in AOIFE NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, DEMOCRACY AND THE COURTS, at xxix-xxx (2011) [hereinafter NOLAN, CHILDREN'S SOCIOECONOMIC RIGHTS];
23. Aoife Nolan, The Child's Right to Health and the Courts, in GLOBAL HEALTH AND HUMAN RIGHTS: LEGAL AND PHILOSOPHICAL PERSPECTIVES 135, 142-44 (John Harrington & Maria Stuttaford eds., 2010) [hereinafter Nolan, The Child's Right to Health].
24. See Martha Minow, What Ever Happened to Children's Rights?, 80 MINN. L. REV. 267, 287, 295-97 (1995) (noting progress in the international domain in recognizing human dignity as the starting point for children's rights, but also the degree to which the "movement for children's rights [has] failed to secure a coherent⋯ intellectual foundation"). For more recent work, which begins to flesh out a dignity-based account with clear similarities to our own
25. see Michael D. A. Freeman, Upholding the Dignity and Best Interests of Children: International Law and the Corporal Punishment of Children, 73 LAW & CONTEMP. PROBS. 211, 251 (2010) (arguing that "[t]o emphasize dignity is to engage with our conception of what it is to be human" and that it is now time to "recognize dignity's significance for children and for the corporal-punishment debate");
26. cf. DAVID ARCHARD, CHILDREN 160-70 (1993) (offering another alternative theory of children's rights, distinct from social contract ideas, based on notions of equality, democracy and "modest collectivism").
27. See, e.g., U. S. CONST. amend. XXVI.
28. see also Aoife Nolan, The Child as "Democratic Citizen": Challenging the "Participation Gap," 2010 PUB. L. 767, 768 (describing the lack of protection afforded to children's democratic participation as "deeply problematic"). One possible solution to protecting children's participatory rights would be amending the "franchise to introduce a weighted voting system, under which children are accorded a share of an adult vote which increases over time proportionate to the child's age."
29. See, e.g., Martha Minow, Are Rights Right for Children?, 1987 AM. B. FOUND. RES. J. 203, 211 (reasoning that procedural solutions help children receive attention and "recognition of their distinct needs by those who have power over them").
30. See generally MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP (2006) [hereinafter NUSSBAUM, FRONTIERS] (explaining that CA is a useful framework for exploring issues of social justice);
31. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH (2000) [hereinafter NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT] (arguing that the best way to provide the basic social minimum that human dignity requires is to focus on each person's capabilities);
32. Martha C. Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, 9 FEMINIST ECON. 33 (2003) [hereinafter Nussbaum, Capabilities as Fundamental Entitlements] (discussing the relationship between Nussbaum's version of the approach and that of Amartya Sen);
33. Nussbaum, Constitutions and Capabilities, supra note 3 (describing CA as entrenched in many parts of United States history and constitutional tradition). The entire related group of theories (including Nussbaum's and Sen's)
34. is discussed in MARTHA C. NUSSBAUM, CREATING CAPABILITIES: THE HUMAN DEVELOPMENT APPROACH (2011) [hereinafter NUSSBAUM, CREATING CAPABILITIES].
35. See NUSSBAUM, FRONTIERS, supra note 15, at chs. 2-3;
36. Martha Nussbaum, The Capabilities of People with Cognitive Disabilities, in COGNITIVE DISABILITY AND ITS CHALLENGE TO MORAL PHILOSOPHY 74, 79 (Eva Feder Kittay & Licia Carlson eds., 2010) [hereinafter Nussbaum, The Capabilities of Persons with Cognitive Disabilities] (arguing that "it is the equal dignity" of human beings that demands recognition).
37. See Nussbaum, Capabilities as Fundamental Entitlements, supra note 15, at 44-46 (criticizing the absence of such a restriction in Sen's account of capabilities);
38. NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 71-74 (making the same argument).
39. For the concept of the threshold, see NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 40-42 (arguing that the threshold expresses a minimum level for basic social justice and that it ought to be set aspirationally, although not unrealistically).
40. JONATHAN WOLFF & AVNER DE-SHALIT, DISADVANTAGE 133-34 (2007) (exploring the distinction between "fertility functioning" and "corrosive disadvantage").
41. See Tom O'Neill & Dawn Zinga, Introduction to CHILDREN'S RIGHTS: MULTIDISCIPLINARY APPROACHES TO PARTICIPATION AND PROTECTION 3-18 (Tom O'Neill & Dawn Zinga eds., 2001) (noting similar benefits to domestic efforts at implementation of CROC).
42. See, e.g., Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2340 (2009), (Souter, J., dissenting) (elaborating on one view of the process by which courts in this tradition determine the "right moment⋯ to decide whether substantive due process requires recognition of an individual right.").
43. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 36-39 (summarizing this argument);
44. Martha C. Nussbaum, The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis, in COST-BENEFIT ANALYSIS: LEGAL, ECONOMIC, AND PHILOSOPHICAL PERSPECTIVES 169, 169-200 (Matthew D. Adler & Eric A. Posner eds., 2000) [hereinafter Nussbaum, The Costs of Tragedy].
45. NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 17. Nussbaum prefers "Capabilities Approach" because she is concerned with the capabilities of nonhuman animals as well as humans.
46. For discussion, see generally NUSSBAUM, FRONTIERS, supra note 15, at ch. 6.
47. NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 48-49.
48. UNITED NATIONS DEVELOPMENT PROGRAMME, HUMAN DEVELOPMENT REPORT 1990, at 9.
49. See AMARTYA SEN, DEVELOPMENT AS FREEDOM 18 (1999) ("The success of a society is to be evaluated⋯ primarily by the substantive freedoms that members of that society enjoy." (emphasis added)).
50. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 35;
51. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 74.
52. Cf. NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 31 ("But whereas there is room to argue about whether innate potential differs across people, human dignity, from the start, is equal in all who are agents in the first place⋯") (emphasis added).
53. NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 33-34.
54. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 166;
55. NUSSBAUM, FRONTIERS supra note 15, at 202;
56. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 70-71. For the connection of the approach to an idea of overlapping consensus and the Rawlsian concept of "political liberalism"
57. see NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 19, 109.
58. See generally Martha C. Nussbaum, Perfectionist Liberalism and Political Liberalism, 39 PHIL. & PUB. AFF. 3, 4 (2011) (arguing "that political liberalism is superior to perfectionist liberalism as a basis for political principles in a pluralistic society").
59. See Amartya Sen, Elements of a Theory of Human Rights, 32 PHIL. & PUB. AFF. 315, 332-33 (2004) (explaining that a CA distinguishes between what one values doing or being and the means one has to achieve what one values).
60. See generally Martha C. Nussbaum, Capabilities, Entitlements, Rights: Supplementation and Critique, 12 J. HUM. DEV. & CAPABILITIES 23 (2011) [hereinafter Nussbaum, Capabilities, Entitlements, Rights] (exploring the "very close" relationship between capabilities and human rights).
61. See, e.g., Michael D. A. Freeman, The Limits of Children's Rights, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 29, 37 (Michael Freeman & Philip Veerman eds., 1992) ("The view I put forward is premised on the need to respect individual autonomy and to treat persons as equals." (emphasis added)). We prefer, however, to use more neutral words. Autonomy is historically linked to the rejection of religious authority. It means being a law unto oneself, as contrasted with following God's law.
62. See generally J. B. SCHNEEWIND, THE INVENTION OF AUTONOMY: A HISTORY OF MODERN MORAL PHILOSOPHY (1998) (arguing throughout that this is the right way of reading the history of the concept). The CA, as a form of political liberalism, does not ground political principles in any particular comprehensive religious or secular doctrine-or in the denial of one.
63. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 89-93.
64. There is, of course, a vigorous debate among children's rights scholars as to precisely how broad such decisional rights should be. Compare RICHARD FARSON, BIRTHRIGHTS 175-90 (1974) (arguing that "[t]he liberation of children requires that they be given the right to vote")
65. and JOHN HOLT, ESCAPE FROM CHILDHOOD 18 (1974) (defending the view that "the rights, privileges, duties, [and] responsibilities of adult citizens be made available to any young person, of whatever age, who wants to make use of them")
66. and NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 10 (arguing that "child dependence cannot be ended merely by social or political change").
67. See Emily Buss, What the Law Should (And Should Not) Learn from Child Development Research, 38 HOFSTRA L. REV. 13, 45 (2009) ("We sometimes argue for autonomy rights not so much because adolescents 'are ready' to exercise them, but because they need practice to learn how to exercise their rights well.").
68. Compare Katherine Hunt Federle, Looking Ahead: An Empowerment Perspective on the Rights of Children, 68 TEMPLE L. REV. 1585, 1586 (1995) (putting forth the idea that "[r]econceputalizing rights as power permits us to look ahead to a time when children may be respected as powerful, rights-bearing individuals")
69. and Katherine Hunt Federle, Rights, Not Wrongs, 17 INT'L J. CHILDREN'S RTS. 321, 329 (2009) (arguing that the point of children's rights is to "create mutual zones of respect, challenging those who want to act in the best interests of children to promote the empowerment of children instead")
70. and NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 12 (arguing that the work of child liberationists "fails to adequately appreciate the way in which the exercise of such rights (not to mention duties) may impact on the child's enjoyment of other rights, both now and in the future").
71. with Nussbaum, Capabilities, Entitlements, Rights, supra note 41, at 26 ("[T]he whole world is under a collective obligation to secure the capabilities to all world citizens, even if there is no worldwide political organization. ").
72. see NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 13-21.
73. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 35 ("At times group-based policies (for example, affirmative action) may be effective instruments in the creation of individual capabilities, but that is the only way they can be justified.").
74. See generally NUSSBAUM, FRONTIERS, supra note 15, at ch. 3 (discussing the intersection of capabilities and disabilities). Nussbaum identifies that "[t]he problem of constructed failure to fulfill human potential is even more acute in the case of people with mental impairments."
75. See 20 U. S. C. § 1414 (d) (3) (A) (2006). In the areas of political and civil liberty-and in related areas such as property and contract-the best alternative is always one that permits the individual herself to choose the function in question. Thus, if assistance and explanation at the polling place will enable the person with a cognitive disability to vote, that assistance is required.
76. See Nussbaum, The Capabilities of Persons with Cognitive Disabilities, supra note 18, at 89.
77. Cf. Help America Vote Act, 42 U. S. C. § 15481 (2006) ("The voting system shall⋯ be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters⋯"). Where that is not possible, given the nature and extent of the person's disability, the approach recommends surrogacy: the surrogate will attempt to ascertain the views and wishes of her "client," and, where this is impossible, will vote in that person's interest.
78. See Nussbaum, The Capabilities of People with Cognitive Disabilities, supra note 18, at 91-93. Nussbaum argues that a failure to give that person a vote, even when only a surrogate can actually exercise the function, is a failure to treat this person as a fully equal human being and citizen.
79. See NUSSBAUM, FRONTIERS, supra note 15, at 103-04;
80. see also Nussbaum, The Capabilities of People with Cognitive Disabilities, supra note 18, at 333-34 (discussing variations of social contract theory).
81. JOHN LOCKE, TWO TREATISES OF GOVERNMENT, Second Treatise § 95, at 348-49 (Peter Laslett ed., Cambridge Univ. Press 1960) (1689).
82. NUSSBAUM, FRONTIERS, supra note 15, at 103-04.
83. Comm. on the Rights of the Child, Gen. Comment No. 7 on its 40th Sess., Sept. 12-30, 2005, Implementing Child Rights in Early Childhood, U. N. Doc. CRC/C/GC/7/Rev. 1 (Sept. 20, 2006), available at http://www2.ohchr.org/english/ bodies/crc/docs/AdvanceVersions/GeneralComment7Rev1.pdf.
84. See Nussbaum, Constitutions and Capabilities, supra note 3, at 49 ("Human abilities come into the world in a nascent or undeveloped form and require support from the environment-including support for physical health and especially, here, for mental development-if they are to mature in a way that is worthy of human dignity.").
85. See generally CHILDREN AND CITIZENSHIP (Antonella Invernizzi & Jane Williams eds., 2008) (providing a useful general discussion of children's citizenship rights).
86. For more on the difference between "internal" and "combined" capabilities, see NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 21. Internal capabilities are "characteristics of a person (personality traits, intellectual and emotional capabilities, states of bodily fitness and health, internalized learning, skills of perception and movement)."
87. See Steven Lecce, Should Democracy Grow Up? Children and Voting Rights, 9 INTERGENERATIONAL JUST. REV. 133, 134 (2009) (arguing that there is "nothing necessarily objectionable about using age as a reliable proxy for various competences that might be relevant to people's abilities to effectively discharge rights and responsibilities," whereas reliance on age alone would, like reliance on race or sex, be clearly morally objectionable).
88. See generally Elizabeth F. Cohen, Neither Seen nor Heard: Children's Citizenship in Contemporary Democracies, 9 CITIZENSHIP STUD. 221 (2005) (discussing the strengths and weaknesses of this as a potential justification for giving voting rights to children);
89. Nolan, The Child as "Democratic Citizen," supra note 13, at 769-74 (same). Such an instrumental justification for granting voting rights to children will also tend, in most cases, to be entirely consistent with a CA.
90. For critical discussion of this "participation gap" under CROC, however, see Nolan, The Child as "Democratic Citizen," supra note 13, at 774-80.
91. see NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 71-73 (questioning whether "promoting freedom is even a coherent political project");
92. Nussbaum, Capabilities as Fundamental Entitlements, supra note 15, at 47 (describing as "hopelessly vague" Sen's endorsement of "freedom/capability"). In essence, Sen holds that it is always right to expand the set of capabilities that people have, no matter the content of the capabilities.
93. See Nussbaum, Capabilities as Fundamental Entitlements, supra note 15, at 44-45. Nussbaum argues that we must not acknowledge as "central capabilities," and certainly not seek to expand, those that involve violation of the rights of others. Nussbaum uses as examples the capability to harass women in the workplace, the capability to refuse employment on grounds of race, and the capability to pollute the environment.
94. See Cruzan v. Dir., Mo. Dep't of Health, 497 U. S. 261, 270 (1990) (recognizing that "cases involv[ing] patients who refuse[] medical treatment forbidden by their religious beliefs" implicate "First Amendment rights as well as common-law rights of selfdetermination").
95. See, e.g., Holmes v. Silver Cross Hosp., 340 F. Supp. 125, 130 (N. D. Ill. 1972) ("[A] state-appointed conservator's ordering of medical treatment for a [Jehovah's Witness] in violation of his religious beliefs, no matter how well intentioned the conservator may be, violates the First Amendment's freedom of exercise clause in the absence of some substantial state interest.").
96. See, e.g., Walker v. Superior Court, 763 P.2d 852, 855 (Cal. 1988) (holding that a Christian Scientist mother could be prosecuted for involuntary manslaughter and felony child endangerment after her child died of meningitis "after receiving treatment by prayer in lieu of medical attention");
97. People ex rel. Wallace v. Labrenz, 104 N. E.2d 769, 773 (Ill. 1952) (also permitting a blood transfusion for a child over the objections of Jehovah's Witness parents on the grounds that "a child whose parents refuse to permit a blood transfusion, when lack of a transfusion means that the child will almost certainly die or at best will be mentally impaired for life, is a neglected child");
98. Lundman v. McKown, 530 N. W.2d 807, 828-29 (Minn. Ct. App. 1995) (holding Christian Scientist caregivers liable in a wrongful death action for failing to treat symptoms of juvenile-onset diabetes);
99. State v. Perricone, 181 A.2d 751, 757 (N. J. 1962) (holding that the religious beliefs of parents who were Jehovah's Witnesses did not permit them to refuse blood transfusions for a dying child, or, in the words of the court, to make "martyrs" of their children
100. (quoting Prince v. Massachusetts, 321 U. S. 158, 170 (1944)));
101. see also Isolde Raftery, Changes in Oregon Law Put Faith-Healing Parents on Trial, N. Y. TIMES, May 30, 2011, at A14 (describing a recent episode concerning the Followers of Christ Church: parents who refused medical treatment on religious grounds for a child with a benign tumor that might cause blindness if untreated were indicted for first-degree criminal mistreatment in Oregon. The child was placed in foster care for two months while she received treatment.). For discussion of the constitutional standard
102. see MARTHA C. NUSSBAUM, LIBERTY OF CONSCIENCE: IN DEFENSE OF AMERICA'S TRADITION OF RELIGIOUS EQUALITY 115-74 (2008).
103. See Wisconsin v. Yoder, 406 U. S. 205, 234 (1972). Homeschooling is another potentially important exception granted to parents in the United States, in this context.
104. Cf. Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 247 (3d Cir. 2008) (recognizing a parent's right to direct a child's education, but holding that "the right to be free from all reporting requirements and 'discretionary' state oversight of a child's home-school education[,] has never been recognized" (emphasis added)). Whether home schooling as currently practiced, with virtually no oversight or curricular requirement, is compatible with the development of children's capabilities as citizens is, however, open to question. In Mozert v. Hawkins County Board of Education
105. 827 F.2d 1058, 1060, 1068 (6th Cir. 1987), the court reasoned that the government has a compelling interest in ensuring that children learn about the varied religious and ethnic groups that compose their society-in response to a "born again Christian" mother who wanted her children to be shielded from such knowledge, asserting that the Bible was all her children needed to know.
106. See Yoder, 406 U. S. at 228-29, 239-40, 245-46. The case has been criticized in many ways; one clear problem is that the future employment opportunities of girls were not discussed. After withdrawal from school, Amish boys learn carpentry and farming, highly exportable skills; girls learn only household management.
107. See NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 233.
108. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 71.
109. See NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 5.
110. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 36-39.
111. see also Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, 8 INT'L J. L. & FAM. 1, 3-4 (1994) (collecting other human rights instruments invoking the same or similar phrase).
112. See Philip Alston, The Legal Framework of the Convention on the Rights of the Child, 91/2 BULL. HUM. RTS. 1, 9 (1992).
113. CONSTITUIÇÃO FEDERAL [C. F.] [CONSTITUTION] art. 227 (Braz.). (emphasis added);
114. see also NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 239 n. 60.
115. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 73 ("[Some freedoms] are not implicit in our conception of social justice, and certainly they should not appear in a list of fundamental constitutional rights.").
116. See, e.g., U v U (2002) 211 CLR 238, 242 (Austl.) (restricting the rights of the adult female appellant to move internationally, according to a best-interests-of-the-child standard). For discussion
117. see Juliet Behrens, U v U: The High Court on Relocation, 27 MELB. U. L. REV. 572, 573 (2003) (encouraging legislative reform to embody presumptions which defer to the judgment of a child's primary caregiver in relocation cases).
118. From the perspective of CA, the distinction is, of course, ultimately quite artificial, given that all rights require government expenditure for their realization and preservation. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 64-67. For another criticism of the distinction as artificial
119. see, for example, Terence Daintith, The Constitutional Protection of Economic Rights, 2 INT'L J. CONST. L. 56, 57-64 (2004);
120. Cécile Fabre, Constitutionalising Social Rights, 6 J. POL. PHIL. 263, 264 (1998);
121. Nolan, The Child's Right to Health, supra note 9, at 145.
122. See, e.g., Committee on the Rights of the Child, General Comment 5: General Measures of Implementation for the Convention on the Rights of the Child, ¶ 5 (2003), available at http://www.unhchr.ch/tbs/doc.nsf/ %28symbol%29/CRC. GC.2003.5. En (suggesting that the approach of the UN Committee on Economic, Social and Cultural Rights to art. 2(1) of ICESCR should be seen as "complementary" to the approach taken to art. 4). The Constitutional Court of South Africa has taken a similar approach in Grootboom in the context of the right to shelter.
123. See ICESCR, supra note 6, at art. 11;
124. CROC, supra note 7, at art. 27.
125. See S. AFR. CONST., 1996, §§ 26-28.
126. CONSTITUCIÓN POLÍTICA DE COLOMBIA [C. P.] art. 44.
127. A similar contrast could arguably be made under the Honduran Constitution. Compare CONSTITUCIÓ N POLÍTICA DE LA REPÚBLICA DE HONDURAS art. 123, translated in Constitution of Honduras, HONDURAS. COM, http://www.honduras.com/honduras-constitutionenglish.html#. TyayUCOpWtl (last visited Jan. 30, 2012) (recognizing the right of children to "grow and develop in good health")
128. For discussion of this point, see Nolan, The Child's Right to Health, supra note 9, at 145.
129. 2000(3) BCLR 277 (CC) (S. Afr.).
130. See Gov't of the Republic of South Africa v. Grootboom 2001(1) SA 46 (CC) at paras. 74-79 (S. Afr.) (determining that the High Court erred in holding that there is "a separate and independent right[] for children and their parents" to shelter and social services);
131. Grootboom 2011(7) BCLR 651 (CC) at paras. 5, 73-79. For discussion
132. see Rosalind Dixon, Creating Dialogue About Socioeconomic Rights: Strong-Form Versus Weak-Form Judicial Review Revisited, 5 INT'L J. CONST. L. 391, 395-98 (2007).
133. Minister of Health v. Treatment Action Campaign (No. 2) 2002(5) SA 721 (CC) (S. Afr.).
134. Corte Constitucional [C. C.] [Constitutional Court], mayo 20, 1998, M. P: E. Cifuentes Muñoz, Sentencia SU-225/98 (Colom.). For discussion
135. see NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 11;
136. Alicia Ely Yamin & Oscar Parra Vera, The Role of Courts in Defining Health Policy: The Case of the Colombian Constitutional Court 4 (2008) (Harvard Law School Human Rights Program), available at http://www.law.harvard.edu/ programs/hrp/documents/Yamin-Parra-working-paper.pdf (last visited Oct. 12, 2011).
137. See Martha Minow, Children's Rights: Where We've Been, and Where We're Going, 68 TEMPLE L. REV. 1573, 1576 (1995) (quoting Phyllis Schafley's "Declaration of a Child's Rights").
138. See Plyler v. Doe, 457 U. S. 202, 238-39 (1982) (Powell, J., concurring) (upholding a right of access to public school education for children of undocumented aliens).
139. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 21 (stating that "[o]ne job of a society that wants to promote the most important human capabilities is to support [their] development" by providing resources and education, and by supporting families).
140. See Wisconsin v. Yoder, 406 U. S. 205, 224-25, 240 (1972).
141. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 18 (describing the CA as focusing on both an individual's well-being and "the opportunities available to each person").
142. See NUSSBAUM, FRONTIERS, supra note 15, at 156-58 (discussing the mutual advantages deriving from cooperation and a shared life among the people in a society).
143. See, e.g., E. Glenn Schellenberg et al., "Innocent Victims" of AIDS: Identifying the Subtext, 25 J. APPLIED SOC. PSYCHOL. 1790, 1791 (1995) (describing the tendency to refer to "infants, hemophiliacs, and people who had blood transfusions as 'innocent' victims of AIDS").
144. See Matthew Walberg & Ted Gregory, Hanover Park Woman Who Feared Husband Is Found Dead, CHI. TRIB., Aug. 27, 2011. At the end of a story about a woman who was first battered and then stalked and murdered by her husband, an acquaintance of the woman says: "[she] was just the nicest person. Everybody who came in[to the restaurant] loved her. She was just a great mom, a great bartender, a great co-worker. She didn't do anything wrong; she didn't deserve this." But suppose she had been a nasty person and an incompetent bartender⋯
145. S v. Makwanyane and Another 1995(3) SA 391 (CC) at 431 para. 88 (S. Afr.). "Weakest" evidently refers to vulnerability, while "worst" underlines our point that moral guilt does not mean that a person loses fundamental entitlements. On vulnerability
146. See, e.g., NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 148 ("[D]omestic violence and child sexual abuse should be aggressively policed by the state.").
147. Plyler v. Doe, 457 U. S. 202 (1982);
148. Minister of Health v. Treatment Action Campaign (No. 2) 2002(5) SA 721 (CC) (S. Afr.);
149. Gov't of the Republic of S. Afr. v. Grootboom 2001(1) SA 46 (CC) (S. Afr.).
150. See PAUL BLOOM, DESCARTES' BABY: HOW THE SCIENCE OF HUMAN DEVELOPMENT EXPLAINS WHAT MAKES US HUMAN 119-21 (2004).
151. Cf. Graham v. Florida, 130 S. Ct. 2011, 2032 (2010) ("Difficulty in weighing longterm consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense.").
152. See NUSSBAUM, FRONTIERS, supra note 15, at 96-98 (giving examples of adults whose mental disabilities may leave them permanently dependent upon others).
153. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 148 (noting that state action is often needed in the policing of child abuse, child marriage, child labor, and educational decisions).
154. For discussion of children's economic powerlessness, see NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 83-84.
155. See, e.g., Fair Labor Standards Act, 29 U. S. C. § 212 (2006) (establishing federal provisions to limit child labor);
156. Wisconsin v. Yoder, 406 U. S. 205, 215 (1972) (recognizing that while there may be a "State[] interest in universal compulsory education, it is
157. Cf. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 230-31 (noting that states often acknowledge broad parental rights due to parents' "legitimate rights over [their children]" and because it can be difficult to determine a child's actual choice given "parental power and the child's economic dependency").
158. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U. S. 833, 897-98 (1992) (criticizing the now moribund traditional common-law principle that "a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state"
159. (citing Bradwell v. State, 83 U. S. (16 Wall.) 130, 141 (1873) (Bradley, J., concurring))).
160. Cf. NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 8 (criticizing the "public neglect of children as an aggregated group, justified by the theory that they are solely the responsibility of their parents"). For ideas about the insurance-based function of constitutional rights in a quite different context, compare, for example
161. TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES 26 (2003) (noting the capacity of constitutional rights and judicial review to provide insurance to outgoing political elites), with Tom Ginsburg & Rosalind Dixon, The South African Constitutional Court & An Insurance-Based Theory of Socio-Economic Rights (2011) (unpublished working paper) (on file with authors) (noting the capacity of socioeconomic rights to provide political insurance to left-wing parties against the danger that certain concessions to right-wing parties, in the form of a right to property or contract, could prove unduly costly downstream).
162. For an American example, see Estelle v. Gamble, 429 U. S. 97, 104 (1976), in which the Court held that "it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."
163. (quoting Spicer v. Williamson, 132 S. E. 291, 293 (N. C. 1926)). In some cases, however, the United States Supreme Court has refused to apply this principle to children in their parents' care.
164. See, e.g., DeShaney v. Winnebago, 489 U. S. 189, 201-02 (1989). On the analogy between the position of prisoners and children in this context
165. see further: NOLAN, CHILDREN'S SOCIOECONOMIC RIGHTS, supra note 9, at 19.
166. For an Australian example, see Hill v Van Erp (1997) 188 CLR 159, 159 (Austl.) (holding a solicitor liable to a third party who did not inherit due to solicitor's negligence in preparing a will, as solicitor owed third party a duty of care based on the nature of the undertaking). For an English example
167. see Caparo Industries plc v. Dickman, [1990] 2 A. C. (H. L.) 605 (appeal taken from Eng.) (holding that an auditor owed a duty to shareholders and not just to client company, and finding that auditor was negligent in understating a company's financial losses).
168. American examples can be found in the dramatic Tarasoff v. Regents of the University of California, 551 P.2d 334, 340 (Cal. 1976) (holding that a therapist owes a duty to the intended victim of a homicidal patient)
169. and Rowland v. Christian, 443 P.2d 561, 568 (Cal. 1968) (ruling that a property owner owes a duty to warn those on his property about a concealed danger).
170. Minister of Health v. Treatment Action Campaign (No. 2) 2002(5) SA 721 (CC) at 749 para. 77 (S. Afr.).
171. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 47-56, 69-100.
172. Sandra Liebenberg, The Value of Human Dignity in Interpreting Socio-Economic Rights, 21 S. AFR. J. HUM. RTS. 1, 22 (2005). Unlike Liebenberg, we do not believe that the denial of any rights-claim that is justified in cost-benefit terms (that is, inherently reasonable and proportionate) will constitute an affront to dignity in this sense. The polycentric nature of socioeconomic rights may mean that, in cases where costs and benefits are relatively evenly balanced, it is reasonable to deny even such reasonable demands, in order to realize more cost-effective protections in other contexts.
173. HELEN SAXENIAN, INTERNATIONAL AIDS VACCINE INITIATIVE/PROGRAM FOR APPROPRIATE TECHNOLOGY IN HEALTH, HPV VACCINE ADOPTION IN DEVELOPING COUNTRIES: COST AND FINANCING ISSUES 10 (2007), available at http://www.rho.org/files/IAVI- PATH-HPV-financing.pdf.
174. See Minister of Health v. Treatment Action Campaign (No. 2) 2002(5) SA 721 (CC) at 765 (S. Afr.).
175. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 44-45;
176. Cf. NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 14-15 (making similar arguments in respect of certain socioeconomic rights for children, though not explicitly in reliance on the language of fertility and corrosiveness).
177. Linda Weinreb et al., Hunger: Its Impact on Children's Health and Mental Health, 110 PEDIATRICS 1, 4, tbl.1 (2002).
178. CROC, supra note 7, Art 24(2) (c).
179. See People's Union for Civil Liberties v. Union of India, Writ Petition (Civil) No. 196 of 2001, http://www.righttofoodindia.org/orders/nov28.html (S. C. Nov. 28, 2001) (India).
180. See V. A. GANGADHARAN, GOVERNMENT OF KERALA, NOON MEAL SCHEME IN KERALA: NEW MANAGEMENT PROPOSAL FOR THE SCHOOL LUNCH PROGRAM 12 (2006) ("Kerala is a pioneer in the introduction of the [Noon Meal] scheme in the country and compared to many states, it has been a tremendous success here."), available at http://www.righttofood india.org/data/ gangadharan2006keralanoonmealmanagement.doc;
181. RIGHT TO FOOD CAMPAIGN-TAMIL NADU, INQUIRY REPORT INTO ACCIDENT AT MELVALAMPETTAI HIGHER SECONDARY SCHOOL 2 (2006), available at http://www.righttofoodindia.org/data/rtftn06 mdmaccidentenquiry.doc ("The Noon Meal Programme (NMP) has a long history in Tamil Nadu and has become one of the most prestigious programmes of the state government. The Tamil Nadu scheme is the country's largest in terms of the number of beneficiaries covered.").
182. Plyler v. Doe, 457 U. S. 202, 221 (1982).
183. See, e.g., BUREAU OF THE CENSUS, U. S. DEP'T OF COMMERCE, STATISTICAL BRIEF: MORE EDUCATION MEANS HIGHER CAREER EARNINGS (1994), available at http://www.census.gov/apsd/www/statbrief/sb94-17.pdf.
184. See James J. Heckman, Skill Formation and the Economics of Investing in Disadvantaged Children, 312 SCIENCE 1900, 1901 (2006) [hereinafter Heckman, Skill Formation];
185. James J. Heckman, Op-Ed., Catch 'Em Young, WALL ST. J., Jan. 10, 2006, at A14 [hereinafter Heckman, Catch 'Em Young] ("Once a child falls behind in these fundamental skills, he is likely to remain behind.");
186. Pedro Carneiro & James Heckman, Human Capital Policy 5-6, 45-49 (Nat'l Bureau of Econ. Research, Working Paper No. 9495, 2003), available at http://www.ecdgroup.com/pdfs/heckman-article-20-05-2003-17-59-04.pdf.
187. NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 32-34.
188. See Plyler, 405 U. S. at 221;
189. see also Heckman, Skill Formation, supra note 164, at 1901;
190. Heckman, Catch 'Em Young, supra note 164;
191. See Plyler, 405 U. S. at 241 (Powell, J., concurring) (arguing that the consequence of excluding illegal alien children from the public schools would be to create "within our borders a subclass of illiterate persons many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime");
192. See Heckman, Skill Formation, supra note 164, at 1901;
193. Heckman, Catch 'Em Young, supra note 164;
194. Nussbaum defines the relevant capability as "[b]eing able to⋯ think, and reason-and to do these things in⋯ a way informed and cultivated by an adequate education." See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 33.
195. See James J. Heckman, Lessons from the Bell Curve, 103 J. POL. ECON. 1091, 1112 (1995);
196. See CROC, supra note 7. In the United States, IDEA gives all children with disabilities rights to an education in accordance with an Individualized Education Plan.
197. Individuals with Disabilities Education Act, 20 U. S. C §§ 1400-82;
198. see NUSSBAUM, FRONTIERS, supra note 15, at 203-11;
199. Nussbaum, The Capabilities of People with Cognitive Disabilities, supra note 18 at 332, 341-45. The cases that prompted IDEA insisted that the state may not shirk its constitutional responsibility to treat these children with equal respect simply because their education is unusually costly.
200. See Smith v. Robinson, 468 U. S. 992, 996 (1984);
201. Pa. Ass'n for Retarded Children v. Pennsylvania, 343 F. Supp. 279, 301-02 (E. D. Pa. 1972).
202. See Heckman, Skill Formation, supra note 164, at 1901-02 & fig. 2.
203. See generally Prabhat Patnaik, Affirmative Action and the "Efficiency Argument," in EQUALISING ACCESS: AFFIRMATIVE ACTION IN HIGHER EDUCATION (Zoya Hasan & Martha C. Nussbaum eds., forthcoming 2012).
204. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 36-39.
205. See NUSSBAUM, FRONTIERS, supra note 15, at 274-75. This understanding also conforms to the legal position under many IHR treaties.
206. See, e.g., ICESCR, supra note 6, art. 2(1) (requiring states "to take steps, individually and through international assistance and co-operation, especially economic and technical" to realize the rights set out in the Covenant).
207. See generally NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 235-36;
208. Linda Stewart, Interpreting and Limiting the Basic Socio-Economic Rights of Children in Cases Where They Overlap with the Socio-Economic Rights of Others, 24 S. AFR. J. HUM. RTS. 472, 473 (2008) (exploring the seeming "overlap of different socio-economic rights (basic and qualified) in cases where the parents and their children claim to be entitled to socio-economic rights").
209. Gov't of the Republic of South Africa v. Grootboom, 2001(1) SA 46 (CC), at 81-82, paras. 74, 76-79 (S. Afr.).
210. Cf. NOLAN, CHILDREN'S SOCIO-ECONOMIC RIGHTS, supra note 9, at 10 ("[S]ome commentators have gone so far as to argue that 'adultism'-the oppression of children by adults-has the same power dimension in children's lives as sexism or racism.").
211. See NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 1-11. Thus it is not reasonable under a CA, for example, to deny girl children health care of the same quality that boys would receive, to subject them to differential risks of sexual violence, to exclude them from education, and to restrict their mobility in ways that impede learning and the development of political participation.
212. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 106-07.
213. See NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 24-25.
214. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 5-6;
215. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 16 n. 17, 26-28.
216. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 66, 105;
217. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT, supra note 15, at 39.
218. See, e.g., NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 44.
219. Nussbaum, Constitutions and Capabilities, supra note 3, at 18.
220. See Smith v. Robinson, 468 U. S. 992, 996 (1984);
221. Pa. Ass'n for Retarded Children v. Pennsylvania, 343 F. Supp. 279, 301-02 (E. D. Pa. 1972).
222. Cf. NUSSBAUM, FRONTIERS, supra note 15, at 202 ("In other words, the purpose of social cooperation is not to gain an advantage; it is to foster the dignity and well-being of each and every citizen. This goal is interpreted to mean that expenditures on poverty, though they may be costly, are required by the very nature of our social commitment." (emphasis added) (footnote omitted)).
223. See CROC, supra note 7, at Art. 23(3).
224. Convention on the Rights of Persons with Disabilities, G. A. Res. 611, U. N. GAOR, 61st Sess., Supp. No. 49, U. N. Doc. A/61/106 (Vol. 60.), at arts. 24(1), 24(2) (e);
225. 348 F. Supp 866, 875-76 (1972).
226. "The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment, which applies only to the states." Bolling v. Sharpe, 347 U. S. 497, 499 (1954). Although "equal protection of the laws" is not always interchangeable with "due process of law" there comes a point at which "discrimination may be so unjustifiable as to be violative of due process."
227. S. AFR. CONST., 1996, ch. 2, § 27(3).
228. See Paschim Banga Khet Mazdoor Samity v. State of West Bengal, A. I. R. 1996 S. C. 2426, at 2427-28, ¶ 5 (India).
229. See, e.g., Occupiers of 51 Olivia Road, Berea Township, and 197 Main Street, Johannesburg v. City of Johannesburg 2008(3) SA 208 (CC) at 217 para. 18 (S. Afr.).
230. Cf. Gov't of the Republic of South Africa v. Grootboom 2001(1) SA 46 (CC), at 84 para. 88 (S. Afr.) (explaining the unreasonableness of state action in which "respondents were evicted a day early and to make matters worse, their possessions and building materials were not merely removed, but destroyed, and burnt").
231. See, e.g., Theresa C. Heintze et al., Housing Assistance and Employment: How Far-Reaching Are the Effects of Rental Subsidies?, 80 SOC. SERV. REV. 635, 663 (2006) (demonstrating that low-income housing subsidies that created long-term housing leader to a greater likelihood of employment and community involvement);
232. Tellis v. Bombay Mun. Corp., (1985) 2 Supp. S. C. R. 51 (India), available at www.escr-net.org/usr-doc/Decision. doc.
233. See, e.g., Vinothan Naidoo, Government Responses to Street Homelessness in South Africa, 27 DEV. S. AFR. 129, 134-36 (2010).
234. Cf. Nussbaum, CREATING CAPABILITIES, supra note 15, at 145 ("The fertility of a given capability, and the corrosiveness of a given capability failure, are empirical questions whose answers are likely to vary with time and place and with the particular problems of the disadvantaged group. ").
235. Residents of Joe Slovo Cmty. v. Thubelisha Homes 2010(3) SA 454 (CC) (S. Afr.).
236. See CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 70-74 (1993);
237. Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470, 471-72 (1923).
238. See Slovo, 2010(3) SA at 467, 472-74, 506, 514, paras. 21-22, 46, 156, 185.
239. See Neerosh Mudaly & Chris Goddard, The Ethics of Involving Children Who Have Been Abused in Child Abuse Research, 17 INT'L J. CHILD. RTS. 261, 263 (2009) (noting that children's vulnerability is increased by their developmental needs, dependence on adults, "extrinsic social, cultural and environmental factors (which may include abuse) and intrinsic factors which are inherent in the child (such as cognitive, emotional, sensory deficiencies, physical defects and health issues)" (internal citation omitted)).
240. See generally STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF Law 168-205 (1998) (discussing the potential problems and consequences arising from sexual relationships characterized by asymmetrical power as with supervisors and subordinates or teachers and students).
241. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 108-09.
242. See NUSSBAUM, CREATING CAPABILITIES, supra note 15, at 36-38;
243. Nussbaum, The Costs of Tragedy, supra note 27, at 187-92.
244. See NUSSBAUM, FRONTIERS, supra note 15, at 14-22.