H.R. Clinton’s Case

Millions of Americans were first exposed to Hillary Rodham Clinton as she sat loyally by her husband, Governor Bill Clinton, on Sixty Minutes. He was there to deny any liaison with the currently specified bimbo, though he conceded (indirectly) bimberies unspecified. His wife denied that she was like Tammy Wynette standing lachry-mosely by her man; yet that is exactly what she seemed at that humiliating moment. It would be a shame for people to continue thinking of her only in that role, since she is one of the more important scholar-activists of the last two decades. In 1988 and 1991, she was put on the list of America’s most powerful lawyers by The National Law Journal, in recognition of her membership on corporate boards and her record as senior partner at the prestigious Rose law firm in Little Park, where she has been an innovative litigator. In her fields of estate law, child custody, and children’s rights, she was, for instance, the first trial lawyer in Arkansas to conduct the examination by satellite of a witness in a hospital outside the state.

But Ms. Clinton’s record as a legal theorist and strategist is less recognized. Her academic record has been stellar (president of her class at Wellesley first student to speak at a Wellesley commencement, an editor of the Yale Law Journal, legal counsel on the Nixon impeachment staff of the House Judiciary Committee, professor of criminal law at the University of Arkansas). But what set her apart from other successful and scrambling lawyers was her attempt to undergird practical activity with legal theory. She had become involved with the Children’s Defense Fund after her graduation from Yale, and she deplored the ad hoc nature of reform efforts in a field where slogans and sentiment blunt responses to the right-wing defense of “family values” which tells the state, in effect, to “butt out” of what is the parent’s sphere of sole discretion.

In “Children Under the Law,” a 1974 essay for the Harvard Educational Review, she confronted that orthodoxy head on. Traditionally, children had been within what Blackstone called “the empire of the father,” a position in which the children’s very privileges came from their incapacity.¹ Wives, too, were within that “empire”; but they have become competent legal persons in the modern world, while that has not happened to children. Children are legally incompetent by reason of the disabilities that were their source of privilege—e.g., to the right of maintenance. At a time when young men were apprenticed at seven, or put to work in the fields, and young women bore children shortly after menarche, the law of minors was mainly concerned with the passing on of estates in the propertied class. But the cultural “invention” of adolescence, the introduction of child labor laws, the lengthening of required or recommended periods of education, have, she writes, created a large “twilight area” in which sexually and economically independent individuals are still “minors” for most legal purposes. The idea that a person is legally incompetent right up to his or her sixteenth or eighteenth or twenty-first birthday, and entirely competent one day later is so at odds with reality that law and court decisions have had to create a jigsaw pattern of exceptions that are decided according to the immediate problem and not with respect to any general theory of maturing responsibilities.

The clearest example of this is the series of compromises involved in juvenile courts. These are kept separate from ordinary courts on the grounds that children are still in need of protection; yet the very idea of holding minors responsible for their acts presumes competency—a presumption underscored by the Supreme Court’s extension of due process protections to juvenile defendants (In re Gault, 1967). Yet four years after that decision, the Court refused to take under consideration the appeal from a lower court’s support for corporal punishment in schools (Ware v. Estes, 1971). This is just one of the many anomalies involved in a system that deals with marriage, alcoholic purchases, automobile driving, and economic credit in the penumbra of legal minority (incompetence).

The decisions in these matters are spotty and inconsequent because there is no comprehensive theory of graduated maturity. Though Clinton admits that it would be impossible to establish a calibrated scale of increasing competence applicable to all children, she thinks that the effects of such a scale could be approached by a simple but radical proposal—to reverse the legal presumption of children’s incompetence, to which extensive exceptions must be drawn up, and install a presumption of competence, to which exceptions no more extensive would be made.

There would be several advantages to this reversal. For one thing the area of admitted incompetence is smaller and more easily identified (the infant and physically unmastered stages) than is the large and complex area of growing competence. Children’s advances in knowledge are explosive.

The presumption of competence would enlarge the number of factors that a court should include in its decision-making. When, for instance, the court decided a case against Amish parents for keeping children from public schools (Wisconsin v. Yoder, 1972), all the justices but one treated it simply as a matter of the parents’ right to free exercise of their religion. Only Justice Douglas considered the child’s right to educational advantages offered to all other citizens. A presumption of competence would have included that consideration in every Justice’s ruling.

Some First Amendment rights have been defended for high school newspapers—rather illogically, in a scheme that leaves school activities to the discretion of the educators. A presumption of competence would assume, in the absence of proof to the contrary, that writers know what they are writing about and editors are responsible for what they edit. Since responsibility would increase liability (for things like slander), school administrators would still have the right to control their resources; but their relationship with a paper’s editor would be more like that of an owner-employer than of a patron-censor in loco parentis.

Clinton realizes that her proposal will be opposed by traditionalists who believe that the family is a politically exempt institution into which “the state” should not intrude. Senator James Buckley led the opposition to the Comprehensive Child Development Act of 1974, which President Nixon vetoed. But Clinton returns to a classical concept of all social activity as political. She also notes that political ideology is itself used to create the exemptions of the family from politics—e.g., by Roscoe Pound of Harvard, who argued that family autonomy makes for social stability² . Even in practical terms, political interests have been at play in the legislation about minors’ activities—e.g., when unions supported public education as a removal of child workers from the labor market, or agricultural lobbyists pushed for school lunch programs. Children are not exempt from the effects of politics, just from political activity as their own responsibility.

In “Children’s Rights,” her second major article on the subject, published in a collection of papers by Columbia University’s Teacher’s College, Clinton developed the arguments framed six years earlier. The argument for a presumption of children’s competence is presented here not just as one of several approaches but as an urgent priority: “The first thing to be done is to reverse the presumption of incompetency and instead assume all individuals are competent until proven otherwise.” She also lays new stress on children’s responsibilities as the inescapable correlative of children’s rights: “This [regnant] presumption of incompetency has profound significance not just because children are reliant on adults to exercise their rights for them, but because a child denied the opportunity to exercise responsibilities is effectively denied the opportunity to mature into a responsible adult.”

Ms. Clinton’s role as an activist for children’s rights took on a new urgency in Arkansas, a state whose backward educational system has limited its citizens’ futures. As a superachieving young lawyer in Fayetteville, the academic enclave where she began to teach law, she was frustrated—according to her Fayetteville friend from Yale Law School days, Richard Atkinson—by the attitude many of her students expressed, that they could not be expected to perform very well or rise very high because “we are only Arkansas folk.”

When her husband became governor, he appointed Ms.Clinton to head a committee to raise educational standards in Arkansas. As an outsider from Park Ridge, a suburb of Chicago, she felt it necessary to gain community support for any proposals her committee would advance, so she began an exhausting round of county-by-county hearings where her emphasis was on a consumers’ rights approach to education—that parents have a right to the best performance from teachers whose salaries they pay, but also that children have a right to the best product they are “buying” by their attention during their most educable years. Against the heavy opposition of the teachers’ union, Ms. Clinton won popular support for the idea of testing teachers, as part of a program that would go on to give standard tests to pupils. The latter, she argued, was impossible without the former. The student must first have a right to good education before assuming the duty to show a return for the state’s investment of tax money in his or her future.

To charges that the first tests given to teachers were too low in their standards to raise the instructors’ abilities very far, Ms. Clinton responds that it was first important to establish the principle of responsible performance. Then, when the state provided opportunities for remedial instruction of teachers who failed, it established a further principle—that of continuing education for the educators. Testing, in this view, should not be a mere certification of education achieved but a means of improving education as an opportunity for career advancement. Ms. Clinton has outlined a comprehensive program for “inservice” education of would-be educators at all public schools, a program that has won the support of the very teachers’ union that opposed testing in the first place. (See her essay in Beyond the Looking Glass.)

“Comprehensive” is the key word in Clinton’s thought on social problems. She wrote an essay-review in the Yale Law Journal criticizing Gilbert Y.Steiner’s 1976 volume, The Children’s Cause, for its recommendation that an overall strategy for dealing with children’s problems be abandoned for politicking to achieve such targets of opportunity as Headstart or day care. Clinton knows only so much can be done in any political situation; but it should be done, she feels, as a part of a larger strategy of interconnected rights. Attempts to improve education are useless if malnourished, damaged, or homeless children prove uneducable. Children’s rights and women’s rights are at odds without a scheme of day care that recognizes both. Economic competitiveness is impossible without improved education performance, and that is impossible in the American (as opposed to the Japanese) system without increased student responsibilities.

Clinton has studied the treatment of children in many countries, as part of her duties as cochair of the Children’s Defense Fund. After an inspection tour of France in 1990, she wrote an op-ed piece for The New York Times (April 7, 1990) in favor of the French approach to child care since it is “a coordinated, comprehensive system, supported across the political spectrum, that links day care, early education, and health care.” The French plan involves continual testing and certification of day care centers, and it recognizes without equivocation the state’s responsibility to children as citizens.

As a “Yankee” in Arkansas, Ms.Clinton has been surprisingly successful at winning support for programs that have a radical basis. Her arguments for children having responsibilities contributed to passage of the state’s requirement that pupils stay in school if they are to get and retain driver’s licenses. But she argues, as well, for parents’ duties to their children—as in the law that provides for court enforcement of a school’s summons to a parent whose child needs counseling. In the past, the child’s rights were asserted vicariously through the parent. Ms.Clinton sees those rights as, at times, to be asserted against the parent. This has always been recognized in abuse cases, but she would extend it much farther.³

She would also use state facilities to help the parent achieve an education for his or her child. In her community visits to create support for explicit education standards, she was struck by the frequency with which impoverished mothers failed to talk to their babies; they were not aware how speech patterns are deciphered even by infants.⁴ She brought back from Israel the unhappily named Home Instruction Program for Preschool Youngsters (acronym HIPPY). This was designed for immigrants from North Africa whose children had too few skills to take part in the normal day care centers. By showing the mothers how to teach basic skills to their children, the program instilled pride in the parents as well as proficiency in the children. Pilot HIPPY programs are proving a success in Arkansas.

Ms.Clinton is a feminist. She helped compile the state’s Handbook on Legal Rights for Arkansas Women in 1977 and its updated versions of 1980 and 1987. Objections from voters made her, reluctantly, begin to use her husband’s last name; but her feminism is a thing she has made acceptable to different political audiences. She clearly gets a warm response when talking in this vein to an audience containing a number of women who were or had been teachers:

One thing which I think would improve the quality of education about 100 percent in five years is to increase by one-hundred-fold the number of women superintendants and principals…I think if you go into schools and talk with the people who understand children and are sensitive to their needs, many of them are women who have absolutely no chance of exerting leadership in the present system. What I find after going from school to school, is that the good teachers, many of whom are women, have adapted a strategy of defensiveness toward the outside administration. They basically close their doors and say, “I’m not going to let those people get to me and my students; and I’m going to do the best I can this year.” The principal, who is often a fellow who took the night courses and wrote the thesis at the school of education about basketball theory, and is working his way up to superintendant, doesn’t have a clue about how to get the most out of his teachers, how to encourage that development, that spark, that enthusiasm. He’s not a bad guy, he’s a good guy. But he is not a leader in education.⁵

It is natural to wonder how far Governor Clinton agrees with Ms. Clinton’s promotion of “activist” state programs in child care, health, and education. The couple’s public disagreements are rare. One such is the governor’s support for parental notification before an abortion. This is at odds with his wife’s presumption of competency in the young woman seeking an abortion, and she opposes notification.

Clinton is accused of being “soft on business,” trying to lure industry to his state with tax breaks. Ms.Clinton is also on friendly terms with big business, as one can tell from her activity on the boards of important firms in her state (like Wal-Mart and Tyson Foods). She argues that educational standards create the talent pool for future jobs, and has recruited business support for programs like HIPPY. In fact, she says that luring busness for its own sake is futile unless some commitment to the community can be elicited:

Now remember back six years, ten years, to what we in this part of the country thought of as economic development. We thought it consisted of enticing someone from somewhere else to come here. “Smokestack chasing” is what it was often called. If we could just convince someone to get out of “crummy old dying Detroit” or Chicago and move to Kentucky or Tennessee or Arkansas or Georgia, we were going to be moving right along. Of course, in the last six years, we have seen how many of those industries that we got to move from Chicago and Detroit have moved on to Taiwan and Bangladesh. And we have seen something more important—that economic development cannot depend on what kinds of jobs we bring here as much as on what we do to invest in our people, to become more self-sufficient, to generate more of our own economic opportunities.⁶

Governor Clinton would find that hard to argue with, whatever the exigencies that limit his freedom of action as an office holder. If, as some claim, his “new pragmatism” means giving up comprehensive social programs, then he is not in accord with his wife’s thinking, which has been spelled out with clarity and is exemplified in her later actions.

Some wonder what his wife would do in Washington if her husband should be elected. She never, so far as anyone knows, even considered giving up her law practice when Clinton took up his post as attorney general of Arkansas and then as governor. But a national “first lady” in the courtroom is hard to imagine. Her friends boost her as the next attorney general—a job for which she is, on the record of courtroom experience and legal theorizing, far better qualified than was Robert Kennedy, another close member of a president’s family. Others see some such role in her future whether Bill Clinton wins or not. Her mother told me, “I was disappointed that Sandra Day O’Connor was the first woman appointed to the Supreme Court.” She had always assumed that her daughter would win that honor. Whatever lies before her, she was right to tell us that she is not like Tammy Wynette.