Document Type
Article
Publication Title
Duke Journal of Constitutional Law & Public Policy
Publication Date
2024
Abstract
American constitutional law is defined by a rights-bearing archetype that prioritizes adults—and the Equal Protection Clause is no exception. The Supreme Court has recognized children as constitutional persons and proclaimed that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” but courts mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers. For the first time, this article reveals six adult-rights-bearing analytical traps that limit children’s equal protection, and proposes jettisoning the rigid Carolene Products test in favor of a nascent youth-based framework. Instead of shoehorning children’s rights into a web of laws and principles designed for an adult rights-bearing archetype, discrimination against children merits a framework on its own terms. This article concludes by introducing three youth-based paths to heightened scrutiny when laws: (1) use children as a means to create or maintain a caste system; (2) punish children for matters over which they have no control; or (3) erect an insurmountable barrier to children’s ability in the political process to remedy large-scale catastrophic harm inflicted upon them, such as the disproportionate injuries to young people from the climate crisis and gun violence. This article lays the groundwork for a “children’s equality law” that both accommodates young people’s qualities, characteristics, and needs and provides them equal protection of laws.
Recommended Citation
Catherine E. Smith, The Adult Rights-Bearing Archetype and How It Stifles Young People’s Equal Protection, 19 Duke J. Const. L. & Pub. Pol'y 139 (2024).
Included in
Constitutional Law Commons, Family Law Commons, Fourteenth Amendment Commons, Juvenile Law Commons
Comments
Anchor piece for the symposium "Children’s Equality Law: Engaging the Work of Professor Catherine Smith with the Duke Journal of Constitutional Law & Public Policy," March 29, 2024 at Duke Law School.