The Convention on the Rights of the Child: Federalism Issues for the United States

Susan Kilbourne

Georgetown University Law Center; Class of 1999

Some commentators have assumed that the United States Congress has the power to implement the Convention on the Rights of the Child under the Necessary and Proper Clause of the U.S. Constitution. Susan Kilbourne examines this assumption. Kilbourne first provides an overview of the Convention's drafting, status, and implementation process. Next, she explores the arguments made by those who oppose ratification of the Convention by the United States, evaluates those arguments, and discusses Congress' power to implement treaties under the Necessary and Proper Clause. Finally, Kilbourne assesses the effects of a "federalism understanding," which the Senate might attach, as a precondition to ratification, to minimize the impact of the Convention on areas of law now governed largely by states.

Kilbourne finds that the United States system of federalism should not be a barrier to ratification and implementation of the Convention. While it may be true that it would be bad policy or politics for the federal government to interfere with traditional state functions, ratification and enactment of federal legislation pursuant to the Convention, would not necessarily offend or imperil federalism values.

Vol. V, No. 2, p. 327 (1998)

Revised July 17, 2003 (MD)