Laurence D. Houlgate
I. THE CHILD: A PERSON OR A NON-PERSON IN CUSTODY?
Attempts to extend constitutional rights to children did not succeed in American law until the late 1960s, when the Supreme Court declared that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”‘ In the case of In re Gault,the Supreme Court pronounced that juveniles are entitled to a variety of procedural protections under the Constitution.2 For example, they must be given adequate, timely, written notice of any allegations against them.’ If they are in danger of losing their liberty they are to be afforded the right to counsel,4 the right against incrimination,5 and the right to confront and cross-examine opposing witnesses under oath.” Subsequent cases have emphasized juveniles’ rights to proof beyond a reasonable doubt’ and protection against double jeopardy.8
“Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect.”
When Justice Fortas wrote these memorable words, he was not abiding by either the “Framers’ Intent” or the”Original Understanding” theories of constitutional interpretation. That is, he was not making the claim that those who participated in formulating the amendments to the Constitution intended to include children under its provisions; I doubt that Justice Fortas thought that the amendments were generally understood at the time of their adoption to apply to children. Instead, I believe that if he were alive today, he would probably agree with legal philosopher Ronald Dworkin that the Constitution and its amendments should be interpreted in light of the strongest philosophy of government that could justify them.’ At least part of the strongest philosophy of government that could justify the classification of children as persons is the moral principle of individual autonomy, which I understand to be the right of a person to govern himself, to be free from any external control to which he has not consented. If this principle is part of the moral justification of our Constitution, then it becomes clear why we should include children under its provisions. Young children do not have the competence to make many of the choices that adults make on a regular basis in complex social systems, but they will in a few years develop many of these competencies. Hence, the right to be treated as a person is best understood as a right-intrust. Once we acknowledge this, it becomes legitimate for children to complain if they are not provided with opportunities and conditions assuring their full enjoyment of their constitutional rights when they acquire the characteristics of persons.’ Moreover, the classification of children as persons as a right-in-trust is not only consistent with their being regarded as individuals in custody during their minority, but it defines the limits of our custodial duties. We must provide them “the conditions for their becoming individuals who are able freely and in an informed way to choose and who are prepared themselves to assume responsibility for their choices. And we must refrain from denying children the enjoyment of their rights if we cannot show that this is necessary to protect their future autonomy. Only in this way can we legitimately discharge our custodial duties toward children as persons.
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