11 Mar Government protections for children are frequently limited
Grafton High School Government Protections Discussion
1. Government protections for children are frequently limited by the constitutional rights of others. In both Ferguson and Coy, the Supreme Court restricted such government actions to protect others’ constitutional rights. Well-intentioned individuals might suggest that in these situations the courts should ignore the Constitution or perhaps give an innovative interpretation of a specific clause in order to accomplish society’s goal of protecting children. We have seen that the Fourth Amendment limits government’s ability to conduct a search or to seize an item without a warrant or without a standard exception to the warrant requirement. In addition, the Sixth Amendment mandates that a criminal defendant must be able to confront the prosecution’s witnesses. How might one construct the argument, or not, that the continuity of a constitutional principle is more important than the welfare of a child in some situations?
2. In the DeShaney case, Joshua and his mother based their claim on the Due Process Clause. The Court denied them a remedy because the state government had no affirmative duty to provide additional protection for Joshua under the federal Constitution. The other option might have been a lawsuit against the state and its employees for monetary damages, similar to lawsuits brought for harm caused by an automobile accident. However, under sovereign immunity principles, a government—state or federal—must consent to personal injury claims that seek monetary damages. What criteria should a legislature use when determining if government employees or government entities are protected from lawsuits seeking monetary damages? Should the criteria be based on the extent of harm to the victim? The extent of possible monetary liability to the taxpayers that might result? Should it matter if government caused the harm through its policy decision making (discretionary decision making is frequently immune) or through its implementation of a decision (ministerial acts are more likely to allow a monetary claim)? In what ways is it beneficial or detrimental to allow lawsuits against sovereign entities?
3. State budgets embody priorities. In this chapter, we have seen various choices for government funding: social workers, medical programs for pregnant women, extra safeguards for child-witnesses, medical procedures, attorneys for juvenile offenders, and foster care programs. Other than public education, most states do not list their priorities for governmental services in the state’s constitution. Instead, these programs are at the whim of each year’s budgetary process. What might be the outcome if state constitutions included mandates for a variety of specific services? Which government services, if any, might be the best candidates for inclusion in a state constitution?
