|Cʜɪʟᴅʀᴇɴ’s Oᴘᴘʀᴇssɪᴏɴ, Rɪɢʜᴛs, ᴀɴᴅ Lɪʙᴇʀᴀᴛɪᴏɴ||Samantha Godwin*|
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This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and stably arranged otherwise. My first conclusion from this analysis is that age-based classifications should not be presumed to be rational. From this point, the paper suggests an argument for treating children as a suspect class for the purposes of equal protection analysis. The paper further advances the claim that many of the ways children are legally discriminated against implicate their fundamental rights, and that many age-based classifications should therefore be subject to strict scrutiny and found unconstitutional. I then go on to analyze specific legal issues such as voting rights, corporal punishment, runaway children, and due process in juvenile justice using these considerations.
* Graduate student in philosophy at University College London, University of London; J.D. candidate at Georgetown University Law Center. The author is very grateful to Robin West, Gary Peller, Judith Lichtenberg and Alex Koroknay-Palicz for their comments and advice on this paper.
|Cʜᴀᴘᴛᴇʀ I ♦ Tʜᴇ Iᴍᴘᴀᴄᴛ ᴏꜰ ᴛʜᴇ Aᴅᴜʟᴛ/Cʜɪʟᴅ Sᴏᴄɪᴀʟ Hɪᴇʀᴀʀᴄʜʏ.......................................................................... 1
|Cʜᴀᴘᴛᴇʀ II ♦ Wʜᴀᴛ Wᴏᴜʟᴅ Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ Mᴇᴀɴ?........................................................................... 5
|Cʜᴀᴘᴛᴇʀ III ♦ The Legal Status of Children............................................................................................................ 9
That it is wrong for adults to harm children in ways that exceed the socially prescribed norms of adult-child interaction seems uncontroversial. It is extremely controversial, however, to consider how the socially prescribed and state enforced relationships between children and adults may contain constant, normalized harms. This paper will examine and expose how the legal status of children in society is an oppressed, subjugated one, and why this exceptional oppression is inconsistent with prevailing notions of social justice and equal protection under the law.
It is common to describe equal rights, liberties, and protection under the law as principles necessary for social justice, democracy and human dignity. Equally it is common to take for granted that equal civil and political rights are necessary and desirable only for mature adults and need not be extended to children. The law denies children the rights of citizens, such as the right to vote,1 to full due process,2 and even to effective constitutional protections against cruel and unusual punishment,3 and further denies children the basic rights of persons to be free to live their own lives. Instead, children are subject to their parents’ will with regard to their living conditions,4 personal conduct,5 domicile,6 education,7 and religion.8 The legal status of minority under the dominion of a child’s parents is one of custody9 not liberty, but this almost property-like status is said to be for children’s benefit.10 This paper aims to challenge the justifications for the legal subordination of children and to make at least plausible, the possibility that society could be organized differently.
The first hurdles to overcome are the socially ingrained assumptions about the basic nature of children and the false necessity of the legal and social disadvantages thought to naturally follow. I will argue instead that those legal disadvantages constitute socially and political contingent policy choices. The inferior legal status of children is often taken to be natural as it is assumed to be a direct and necessary result of their inferior mental capacities.11 Far from being demeaning or exploitive, children’s lack of an equal right to liberty and equality under the law is said to protect them and enable proper development.12 Since these legal disadvantages are socially construed as protective of children or arising from childhood innocence, they escape the critical scrutiny that identical disadvantages would draw if applied to other groups.
1 See Oregon v. Mitchell, 400 U.S. 112 (1970).
2 See McKeiver v. Pennsylvania, 403 U.S. 528, 551 (1971).
3 See Ingraham v. Wright, 430 U.S. 651, 657, 682 (1977).
4 See generally 65 Aᴍ. Jᴜʀ. Trials 127 (2010) (Relocation of Children by the Custodial parent.)
5 So-called “incorrigibility” laws may be a statutory basis for state intervention to force children to obey their parents, though this varies from state to state. See 43 C.J.S. Infants § 15.
6 See 65 Aᴍ. Jᴜʀ. Trials 127 § 49 (2010) (Relocation of Children by the Custodial Parent).
7 For an extreme example, see Wisconsin v. Yoder, 406 U.S. 205, 231-34 (1972).
8 See id.
9 See Schall v. Martin, 467 U.S. 253, 266 (1984).
10 See Hᴏᴡᴀʀᴅ Cᴏʜᴇɴ, Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ 11 (1980).
11 See Jᴏʜɴ Sᴛᴜᴀʀᴛ Mɪʟʟ, Oɴ Lɪʙᴇʀᴛʏ (1869) (advancing this view);
• Hillary Rodham, Children Under the Law, 43 Hᴀʀᴠ. Eᴅ. Rᴇᴠ. 489 (1973) (considering this view while dissenting from it);
• Lᴀᴜʀᴀ M. Pᴜʀᴅʏ, Iɴ Tʜᴇɪʀ Bᴇsᴛ Iɴᴛᴇʀᴇsᴛs, Tʜᴇ Cᴀsᴇ Aɢᴀɪɴsᴛ Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ 11 (1980) (describing this view as a presumption).
12 See Mɪʟʟ, supra note 11.
This paper will call for a paradigm shift away from this type of thinking and argue that the law should abolish age as a requirement for equal civil rights. Rather than assuming children do not generally need equal civil rights, I argue that the state should extend the same rights to children as are extended to adults by default—shifting the burden onto the state to demonstrate why particular children should be treated differently.
This paper is composed of three parts. The first two parts challenge the presumption that age-based classifications for rights, privileges and legal disabilities are rational, so as to shift the burden of persuasion against the status quo; the third part addresses how the law should treat children absent this presumption. In the first part of the paper, I will attempt to problematize common assumptions about children, their abilities and their role in society, by comparing the arguments advanced against children’s rights to arguments that have been advanced against other historically oppressed populations. In the second part, I will attempt to build a philosophical framework for thinking about children’s rights, how they might exercise rights competently and how society might function with emancipated children. In the third part, I will apply the skepticism about children’s status introduced in Part One, and the argument for children’s liberation advanced in Part Two, to analyze children’s current legal status. In light of the conclusion that discrimination on the basis of age should not be treated with a presumption of rationality, most laws that restrict children’s rights should be rejected on equal protection grounds.
This paper intends to offer a critique against the most common (or even “common sense”)13 general guiding perspective on children’s rights, that assigning rights and privileges according to age is consistent with a liberal democratic view rights. I argue for an alternative outlook, one that recognizes that while many (though not all) of the motives for legally distinguishing adults from children are legitimate, age is not generally a relevant or fair classification within a liberal rights framework. In fact, age is almost always both an over and under inclusive proxy for the characteristics relevant to legitimate state interests, and as such is neither a precise nor a just basis on which to allocate rights. As a result, this paper does not attempt to definitively address every legal difference between adults and children, but instead to provide an alternative framework with which to approach these current legal differences.
13 See Lᴀᴜʀᴀ M. Pᴜʀᴅʏ, Iɴ Tʜᴇɪʀ Bᴇsᴛ Iɴᴛᴇʀᴇsᴛs, Tʜᴇ Cᴀsᴇ Aɢᴀɪɴsᴛ Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ 211 (1992).
At the outset, it is important to clarify what possessing a right means for the purposes of this paper. To possess a legally protected right does not of course mean that the right’s holder must exercise that right.14 Infants and toddlers so young that they cannot communicate their wishes coherently are physically unable to exercise many rights that adults enjoy or make their choices known, so for these very young children, possessing rights may not have many functional effects.15 Adult citizens have the right to vote, except when deprived of it by due process of law, but many are unable to exercise their right,16 and many more choose not to. Similarly, people may have a right to various state entitlements without deciding to claim them. To possess a right then, does not necessarily entail actually exercising that right. Rather, to possess a right means that others may not legally prevent the rights holder from exercising their right by force. For example, in cases where a trauma patient is unconscious and therefore unable to communicate their desires, physicians must act according to what a reasonable patient would most likely wish.17 This does not mean that trauma patients lack the right to refuse treatment: if they are able to communicate their wishes, they cannot be forced to undertake treatment against their will absent a legal finding of incompetence, even if their doctors believed it to be in their ‘best interest.’18 Similarly I will not argue that children must assume the decisions that adults routinely make, but that they should not be prevented from doing so by the law.
It is also important to clarify that this paper is primarily concerned with children’s codified legal status, arguing that this status is inconsistent with a liberal belief in equal individual rights under the law. It would of course be valuable to consider much more radical critiques of children’s uncodified social status. There is also interesting work to be done challenging liberal individual rights discourse as a whole, rather than accepting its basic assumptions while questioning the way it is applied to children as I do in this paper. However I believe that before more radical approaches to children’s status will be widely considered, it is first necessary to problematize the status of children from within existing liberal thinking on legal rights. Just as second and third wave feminists were able to challenge women’s social roles and question the applicability of basic liberal thought on gender only after the suffragettes won basic legal rights—while children’s legally codified oppression is almost universally regarded as unproblematic, we must delegitimize this prevailing legal regime before we can debate more complex social questions.
14 For example, Cohen writes “We are, correctly, reluctant to say that a right has been violated in the absence of some indication that the person in question tried to claim it. To have a right to something does not mean that you are required to do it or have it; it means that you are entitled to it if you claim it.” Hᴏᴡᴀʀᴅ Cᴏʜᴇɴ, Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ 71 (1980).
15 “Children who are unable to claim their rights will not get what they are entitled to … very young [children]—say under four years of age—and not developed enough to even make the kinds of claims we are referring to here. All we need to say in these cases is that when these children are developed enough to make their claims, they will be entitled to do so. That is why the difference [between granting and withholding rights] is not semantic.” See id. at 71-72.
16 Even psychiatric patients and mentally retarded people have a technical right to vote even if they cannot exercise it, see Pᴇɴɴ. Aᴅᴠɪsᴏʀʏ Cᴏᴍᴍ. ᴛᴏ ᴛʜᴇ Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs Cᴏᴍᴍ’ɴ ᴏɴ Cɪᴠɪʟ Rɪɢʜᴛs, Tʜᴇ Lᴀsᴛ Sᴜꜰꜰʀᴀɢᴇ Fʀᴏɴᴛɪᴇʀ: Eɴꜰʀᴀɴᴄʜɪsɪɴɢ Mᴇɴᴛᴀʟ Hᴏsᴘɪᴛᴀʟ Rᴇsɪᴅᴇɴᴛs 1 (June 1978) (As cited in Ben O’Meara, Children and the Most Essential Right, working paper, Nᴀᴛɪᴏɴᴀʟ Yᴏᴜᴛʜ Rɪɢʜᴛs Assᴏᴄɪᴀᴛɪᴏɴ).
17 See 61 Aᴍ. Jᴜʀ. 2ᴅ Physicians, Surgeons, Etc. § 167.
18 To treat a patient without express permission in an emergency is lawful, as consent is taken to be implied, but to treat a patient who objects, even in an emergency, is a battery absent narrow exceptions. See id.
Recognizing that the systematic discrimination against children in the law is a great injustice does not entail a belief that this discrimination is motivated by any personal prejudice or animus against children. Most adults have an overwhelming sense of sympathy and affection for children. An institution can be institutionally racist and produce consistently racist results that privilege one race against another, even without a single member of its hierarchy acting with racial animus or thinking racially prejudicial thoughts.19 Similarly, despite all good intentions, society is institutionally oppressive to children while privileging adult wishes, desires and interests.20
This oppression occurs without any maliciousness; quite the opposite, it is perpetrated out of concern for the best of children. Paternalistic appeals to the “best interests” of legal subordinates in order to justify that subordination is not unique to children. Similar arguments were advanced to justify the power of slave owners over slaves,21 and the power of husbands over wives.22 Whatever differences may exist between white and black people and between men and women, we find these paternalist arguments repulsive not merely because we disagree as an empirical matter that slavery and coverture were in the best interests of black people and married women, respectively, but because we recognize that equality under the law and civil liberties are intrinsically valuable to people.23 The loss of liberty and equality under the law constitutes a loss of personal dignity that trumps any paternalistic appeals to the ‘real’ best interests of subordinated peoples.24 For this reason and others, to deny equal rights on the basis of irrelevant differences such as race and sex offends our sense of social justice.25 This paper seeks to show that despite the real and significant differences between most adults and most children, these differences do not logically entail discrimination against children, and the denial of equal rights to children is similarly arbitrary and unjust.
This position will strike many as leading to deeply counter-intuitive conclusions that are inconsistent with many people’s moral impulses about how children ought to behave and how they should be treated.26 I would invite readers to engage in what Peter Singer called the “chief task of philosophy,” to “question the basic assumptions of the age.”27 In the first part of this paper, I will argue that our intuitions are not however formed in a vacuum, nor do they necessarily provide any deep insight into justice or fairness.28 Instead our intuitions are shaped and informed by our social conditioning, including the prevailing societal hierarchies and the ideology that sustains them. In the mid 18th century, many people’s intuition would have been that women and non-white people should similarly be subject to the control of other private individuals (husbands and slave owners, respectively) for their own benefit, and at the time many would have likely found it counter-intuitive to call for their emancipation and equal rights under the law. To do so would have flown in the face of everything many people at the time thought they knew about women and non-white people. The initial impulse to dismiss calls for children’s liberation as counter-intuitive should therefore not be accepted uncritically. Those with relative social power and status are historically not reliable judges of the interests, capabilities or needs of socially marginalized and oppressed people when it comes to altering the social hierarchy.29
In the second part of this paper, I will attempt to show how a demand for children’s equal rights could be made credible by combining two approaches advocated by Howard Cohen and Eileen McDonagh. Cohen offers an explanation of how children can enjoy adult rights without adult capabilities by “borrowing capacities” and employing “child agents.”30 Eileen McDonagh offers an explanation of how we can reframe rights discourse from discussion of “decisional autonomy,” or of freedom of choice without state interference, into a discussion of “bodily integrity,” or basic rights against other private parties.31 In doing so, this section will lay out philosophical foundations that lends credibility to the legal analysis advanced in the third part of this paper, by undermining the presumption that age-based classifications are socially necessary.
19 See Judith Lichtenberg, Racism in the Head, Racism in the World, in Pʜɪʟᴏsᴏᴘʜɪᴄᴀʟ Dɪᴍᴇɴsɪᴏɴs ᴏꜰ Pᴜʙʟɪᴄ Pᴏʟɪᴄʏ 91, 91 (Verna V. Gehring and William A. Galston eds., 2003).
• See also Daria Roithmier, Locked In Segregation 12 Vᴀ. J. Sᴏᴄɪᴀʟ Pᴏʟ’ʏ & L. 197 (2004), Daria Roithmier Them that Has, Gets, 27 Mɪss. C. L. Rᴇᴠ. 373 (2008) (for example, institutions that advantage people with preexisting multigenerational wealth will continue to favor racial groups with preexisting wealth even without anyone consciously deciding to favor those groups.)
20 Some might protest at this point that society is very “child centered” and that many or even most families’ decisions revolve around the needs of their children. Of course parents and other adults caring for children often go to great lengths to accommodate their children’s desires and wishes. But they do not have to—they could choose not to without any legal ramifications. Parents could choose to ignore their children’s wishes and many do. Children do not have the option to simply leave, to disregard their parent or guardians wishes. In this way, while children’s wishes and desires are often met, they are not legally privileged—their parents and guardians are.
21 Slavery was actually argued for this way. John C. Calhoun in a speech to the Senate in 1837 declared that “the African slave, kindly treated by his master and mistress and looked after in his old age, is better off than the free laborers of Europe” Cʜᴀʀʟᴇs A. Bᴇᴀʀᴅ & Mᴀʀʏ R. Bᴇᴀʀᴅ, Hɪsᴛᴏʀʏ ᴏꜰ ᴛʜᴇ Uɴɪᴛᴇᴅ Sᴛᴀᴛᴇs, (Project Gutenberg, 2005) (1921)
• available at: http://www.gutenberg.org/files/16960/16960-h/16960-h.htm#Page_316.
• Arguing for slavery, George Fitzhugh wrote “He the Negro is but a grown up child, and must be governed as a child, not as a lunatic or criminal. The master occupies toward him the place of parent or guardian. We shall not dwell on this view, for no one will differ with us who thinks as we do of the negro's capacity, and we might argue till dooms-day in vain, with those who have a high opinion of the negro's moral and intellectual capacity. … The negro slaves of the South are the happiest, and, in some sense, the freest people in the world. The children and the aged and infirm work not at all, and yet have all the comforts and necessaries of life provided for them,” Lᴇsʟɪᴇ H. Fɪsʜᴇʟ, Jʀ. & Bᴇɴᴊᴀᴍɪɴ Qᴜᴀʀʟᴇs, Tʜᴇ Bʟᴀᴄᴋ Aᴍᴇʀɪᴄᴀɴ, A Dᴏᴄᴜᴍᴇɴᴛᴀʀʏ Hɪsᴛᴏʀʏ, (3rd ed. 1976),
• available at: http://www.pbs.org/wgbh/aia/part4/4h3141t.html.
22 For example, Blackstone writes “THE husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer … THESE are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England.” Wɪʟʟɪᴀᴍ Bʟᴀᴄᴋsᴛᴏɴᴇ, Cᴏᴍᴍᴇɴᴛᴀʀɪᴇs ᴏɴ ᴛʜᴇ Lᴀᴡs ᴏꜰ Eɴɢʟᴀɴᴅ, ch. 15 (1769)
• available at: http://www.lonang.com/exlibris/blackstone/bla-115.htm.
23 See Pᴀᴜʟ Sᴘɪᴄᴋᴇʀ, Lɪʙᴇʀᴛʏ, Eǫᴜᴀʟɪᴛʏ, Fʀᴀᴛᴇʀɴɪᴛʏ 76 (2006).
24 See Hᴏᴡᴀʀᴅ Cᴏʜᴇɴ, Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ viii, 11,12 (1980).
25 See id., at 15-16, 44-45.
26 I credit Prof. Judith Lichtenberg for raising the objection that the conclusion of this paper is counter-intuitive.
27 Peter Singer, All Animals are Equal, in Aɴɪᴍᴀʟ Rɪɢʜᴛs ᴀɴᴅ Hᴜᴍᴀɴ Oʙʟɪɢᴀᴛɪᴏɴs, 148, 156 (Tom Regan & Peter Singer eds., 1976).
28 For some general arguments for and against the evidentiary value of intuitions in philosophy, see Alan Goldman, Philosophical intuitions: Their target, their source, and their epistemic status. 74 Gʀᴀᴢᴇʀ Pʜɪʟᴏsᴏᴘʜɪsᴄʜᴇ Sᴛᴜᴅɪᴇɴ 1 (2007).
29 See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 Mᴅ. L. Rᴇᴠ., 563, 588-89 (1982) (describing how upper class males historically believed the hierarchy they imposed was in the interests of subordinate people).
30 See Hᴏᴡᴀʀᴅ Cᴏʜᴇɴ, Eǫᴜᴀʟ Rɪɢʜᴛs ꜰᴏʀ Cʜɪʟᴅʀᴇɴ 74-91 (1980).
31 See Eɪʟᴇᴇɴ L. Mᴄᴅᴏɴᴀɢʜ, Bʀᴇᴀᴋɪɴɢ ᴛʜᴇ Aʙᴏʀᴛɪᴏɴ Dᴇᴀᴅʟᴏᴄᴋ 4 (1996).
In the third part, building off of and extending a position originally made by Hillary Rodham,32 this paper will argue that age-based laws should not be treated as presumptively rational; instead children should be given the status of a suspect class. Expanding from this position, I will argue that while many age-based statutes and common law rules have some rational basis in legitimate state interests, they are neither necessary to accomplish those legitimate interests, nor are they narrowly tailored to meet them. Where there are specific, identifiable relevant differences between most adults and most children that impact their ability to competently exercise rights, the law ought to discriminate, if at all, on the basis of those identifiable relevant differences, rather than employing age as a proxy for those differences. To this end, I will argue that competence and ability based criteria should be used in place of age for making legal distinctions between people when those distinctions are in fact necessary. Where those competences and abilities that supposedly distinguish adults from children for the purposes of holding rights are impossible to articulate or evaluate, then the distinction currently drawn is unlikely to serve any legitimate public interests, and is likely purely discriminatory.
For example, driving under a certain age (normally sixteen) is illegal, because age is taken to be a proxy for driving ability. This proxy however is necessarily over and under inclusive as many people under the age limit will drive more competently than those over the age limit. It is also unnecessary, because driving tests can be precisely tailored to assess driving ability, thereby eliminating incompetent drivers both under and over the any current age limits. In this way, children and adults could be made equal before the law, while the legitimate purpose of the current legal distinction, to insure a minimum standard for safe driving, is preserved. In contrast, that so called “corporal punishment” is legally permissible against children but illegal against adults, cannot be justified according to any meaningful differences between adults and children—it advances no compelling public interest and only serves to oppress children.
32 See Hillary Rodham, Children Under the Law 43 Hᴀʀᴠ. Eᴅᴜᴄ. Rᴇᴠ. 487 (1973).