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January 01, 2005

Child Poverty in the United States: The Need for a Constitutional Amendment and a Cultural Sea Change

by Robert C. Fellmeth

Johnny S. was eleven years old and his homeless mother had his five-year-old sister to worry about. So she left him on a street corner in Ocean Beach, a neighborhood in San Diego. Johnny looked for his mom for four days before he was picked up by social workers. He scrounged for odd jobs and conned a restaurant manager into letting him wash dishes for three hours a night, earning just over $135. When the social workers found him, he had every penny in his pockets. He had confined himself to just one meal at the restaurant because “Mom needs [the money].” Johnny is a bright-eyed boy with above average intelligence. However, he has a slight stoop due to a correctable bone malformation, and his teeth have painful cavities. He has not been to school for two years. He presents a microcosm of child poverty in America: a child with strong potential and admirable character but with health problems, an educational deficit, and likely relegation to group home foster care or to the streets. Regrettably, Johnny is not unique. He lives in our wealthiest state and, until gathered up, was sleeping under bushes by the beach, in the shadows of $5 million homes.

For two decades, child poverty has been fluctuating between 10 and 20 percent of the population, with an overall upward trend. It declined somewhat during the late 1990s, and welfare rolls fell substantially. But those hopeful signs obscure three caveats: (1) the increase appears to have resumed since 2000, and in the context of a now-limited and reduced welfare reform safety net; (2) “severe poverty,” that is, income less than half of the federal poverty line, has increased (but is not precisely measured); and (3) large numbers of children are living below or near the poverty line. This last grouping now represents 37 percent of all American children, 42 percent of its infants and toddlers, 58 percent of its African American children, and 62 percent of its Latino children. National Center for Children in Poverty, Columbia University, Low Income Children in the United States–2004, at

Child advocates are concerned about both ends of this spectrum: the severe poverty, portending permanent damage, and the imminent creation of a large Third World underclass of intractable poverty. The latter concern is reflected in overall increasing income disparities, with the upper 1 percent of Americans now earning as much as the bottom 38 percent combined. And the concern is underlined by barriers to upward mobility driven not only by childhood poverty but by preclusive real estate and rent inflation; growing energy, gasoline, and healthcare costs; and small increases in the higher education capacity—including community college and technical training—that most will need for employment in the international economic labor niche of the United States. This effective contraction is joined by many years of tuition increases well above inflation. Impediments to mobility for the young include unprecedented economic solicitude for older adults and a record federal deficit for the future taxpayers who are now our children. Add to this deficit more ominous Social Security and Medicare obligations. Harvard Law School’s Howell Jackson projects an obligation of more than $30 trillion, $100,000 for each child over the next generation. Unless policies radically change, it will double and perhaps quadruple the regressive and already substantial payroll deductions for the youth who secure employment. Child advocates increasingly decry our unique cross-generational taking. Instead of the long-standing American tradition of older adults investing in the young, which particularly represents an opportunity for the impoverished, we are burdening our children with unprecedented debts and future costs.

A Closer Look

Contrary to public perception, the parents of impoverished children are not consuming beer while watching soap operas, engaging in what some call “welfare as a way of life.” Data reveal that 56 percent of these low-income families have at least one full-time working parent, 28 percent work part time, and only 16 percent are unemployed, many of whom would be willing to work if employment were available. Id. However, the single most striking variable underlying child poverty is single parenthood, caused by divorce and unwed births. The latter have risen over the last thirty years from below 10 percent of all births to over 30 percent. Contrary to the common view, these births are not to teenagers; the vast majority are to adult women. Paternal support for these children is minimal, with average payments amounting to less than $35 per month per child, and almost half of that going not to families but to repay state and federal governments for welfare payments. See Children’s Advocacy Institute, California Children’s Budget 2004-05, ch. 2, at Most of these children live below the poverty line. Perhaps the most remarkable number from the U.S. Census reports is the difference between the median income of a female single head of household with two or more young children (about $11,000 in annual income) and the median for those children in a family of a married couple (well over $50,000). Id.

The conundrum for children like Johnny is the need for two incomes to support high rents and other rising costs of living. His mother is caught between the rock of child care obligations for her children—which she either provides or finds $5,000 per year per child to finance—and the hard place of a single wage earner unlikely to net much more than her child care costs for two or more children. Current federal policy makes the hard place harder because she is limited to sixty months of Temporary Aid to Needy Families and, even if working part time, is given no credit for those months of income where she works less than thirty-two hours. Remarkably, the Bush administration currently proposes a forty-hour minimum work week for such parents, with each month of full-time shortfall generating possible sanction, including the sixty-month lifetime cutoff.

Child poverty involves both private decisions and public disinvestment. Hence, the causes mentioned by commentators tend to turn on their respective political leanings. Conservatives cite reproductive irresponsibility, sexual license, lack of paternal commitment, as well as deficits and unfair burdens imposed on the young by the old, limiting their future aspirations. Liberals cite reduction of the safety net, a minimum wage that is not adjusted to inflation and has declined to below the poverty level for parents of two or more children, and education disinvestment that jeopardizes future employability for an impoverished class. Is it possible that both are correct?

According to many child advocates, the problem facing children is the truce silently in force between these traditional political antagonists. Each appears to have surrendered its agenda favorable to impoverished children in return for the surrender of the other’s. Hence, popular culture now purveys with impunity the notion that single parenthood is simply a different and somehow charming choice, with those dozens of sit-com and other adult models (from Rachel on Friends to Roz on Frasier) suffering no financial repercussions, child care dilemmas, or worries. Indeed, our fantasy parents in the media often do not seem to work for a living; the rent is magically paid. No male appears to pay child support, nor does any child appear to need it. Rather, our media flood us with sexual stimulation and commendation without apparent negative childbirth consequences, replete with Cialis and Viagra ads for hours of male “hardening” while hypocritically eschewing condom ads. Child advocates contend that liberal adults have surrendered (or been overborne) in the direction of momentous public disinvestment in children, especially impoverished children, with safety net support and education opportunity suffering the largest cuts. And child advocates complain that both adult political groupings (although purportedly deeply divided) have conspired to violate through deficits and huge obligations to the elderly the one pact always drawn in favor of children: that adults do not take from their children, but give to them.

A Search for Answers

If these complaints have merit, what is the answer? One prescription is to reverse the trade-off between private license and child disinvestment into the opposite proposition, one demanded from the body politic. The Honorable Charles D. Gill has advanced the public commitment aspect in a proposed constitutional amendment. Essay on the Status of the American Child—2000 AD: Chattel or Constitutionally Protected Child-Citizen? in NACC CHILDREN’S LAW MANUAL at 337 (1998). The U.S. Constitution is oriented to inhibit the coercive power of the state vis-à-vis private, individual liberties. However, the constitutions of most developed nations also interpose some affirmative obligations on the state, obligations that need not impede checks on state coercion. Similarly, the UN Convention on the Rights of the Child, signed and ratified by every nation except the United States and Somalia, posits some minimal affirmative obligations to our children. Such a compact may properly specify only those obligations that are clearly commended as a common floor: that our children will not be homeless, will receive adequate care and nutrition to develop healthy brains, will have minimal health coverage and educational opportunity so they may provide for themselves and their children in turn. What is the opposition to such a constitutional amendment, spelled out with sufficient specificity to be enforceable? Is it that we, unlike our less affluent contemporaries in Europe, cannot afford it?

We reserve for our Constitution measures that may be politically unpopular but are a consensus “rule of the game” underlying our society. Although denied “suspect class” status in equal protection cases, what group is more politically impotent than impoverished children? And what commitment do we have more basic than this one?

Would support for such a formalized pledge benefit from a cultural sea change that private decisions to have children warrant the preparation and respect that the miracle of childbirth implies? That the decision includes the simple and minimal obligation of parents simply to intend a child, and of a father to provide for his children? Assume such a commitment were an acknowledged part of our culture and became as politically incorrect to transgress as would an insult to a gay person or someone dependent on a wheelchair. What would be the prospects for such a constitutional commitment, and to child investment in general, in such an altered environment?

One need not have a long conversation with Johnny to appreciate the merits of both a constitutional amendment and a cultural commitment to children.

Robert C. Fellmeth

Robert C. Fellmeth is Price Professor of Public Interest Law at the University of San Diego School of Law and executive director of the Children’s Advocacy Institute. He authored Child Rights and Remedies, published by Clarity Press in 2003.