This Article presents a developmental theory of children’s constitutional rights that focuses on the fundamental role of children’s rights in the socialization process leading to adult autonomy. The long history of denying children the full range of constitutional rights has its roots in a choice theory of rights that understands rights as deriving from the decision-making autonomy of the individual. From the perspective of choice theory, children do not enjoy most constitutional rights because they lack the capacity for autonomous choice. Choice theory not only justifies the long history of denying children rights, but it also serves to explain the recent but growing number of modern Supreme Court cases in which children’s constitutional rights have been recognized. Choice theory regards these newly recognized rights as autonomy rights, that is, adult rights given to older children based on their increasing capacity for autonomous choice. As explained in this Article, choice theory falls short as a theory of children’s constitutional rights for two reasons. First, as a descriptive matter, choice theory is simply too narrow. As choice theorists would acknowledge, the theory does not address whole categories of existing rights where the decision-making autonomy of the right-holder is not in issue. Even more limiting, choice theory has no conceptual apparatus for defining children’s rights in terms of children’s future autonomy or for conceiving of children’s rights in socializing terms. Second, as a psychology of decision-making, choice theory rests on an excessively rationalist model of decision-making that ignores numerous core aspects of mature, autonomous choice. Psychological research on decision-making illuminates the broad range of mental skills – cognitive, emotional, and imaginative – that children must acquire in order to become autonomous decision makers. By associating autonomous choice with critical thinking skills learned in school, choice theory ignores the non-cognitive attributes of choice and the family caregiving essential to their development. This Article proposes a developmental theory of children’s constitutional rights that overcomes the descriptive and psychological limitations of prevailing choice theory while preserving its central commitment to individual autonomy. The developmental theory’s core insight into the importance of caregiving to children’s future autonomy supports recognizing children’s fundamental constitutional rights in the caregiving relationship. As described in this Article, children’s caregiving rights take three basic forms. First are children’s rights under the Due Process Clause to be free from state intervention into established caregiving relationships. Second are children’s rights arising under other constitutional provisions where the rights at issue touch upon their caregiving interests. Third, and most far-reaching, are children’s affirmative constitutional rights to a minimum level of caregiving services from the state. This final category of rights focuses the debate on state support for the caregiving relationships children need to become autonomous adults and citizens. In elaborating a developmental theory of children’s constitutional rights, this Article aims to secure children’s rightful place as full members and future autonomous participants in the constitutional scheme.
Dailey, Anne, "Children's Constitutional Rights" (2011). Faculty Articles and Papers. 355.