Michael Grossberg. Encyclopedia of Children and Childhood: In History and Society. Editor: Paula S Fass. Volume 2, Macmillan Reference USA, 2004.
As British colonists began peopling North America, political philosopher Thomas Hobbes voiced the stark traditional English view of the legal status of children: “For the child like the imbecile and the crazed beast there is no law.” Over three hundred years later, United States Supreme Court Justice Harry Blackmun reached a very different conclusion. In a decision that granted a minor the right to an abortion without parental consent, Blackmun asserted: “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” In the years between these dramatically different declarations, age had become increasingly significant in American law. However, the legal status of children had not simply improved steadily over that time. More critically, the law increasingly had become a primary source of identity, status, and power for American children. It did so as children gradually acquired a separate and distinct legal identity.
Central to the creation of law for children at any particular time and over time has been the ideal of youthful dependence. Though exact conceptions of youthful dependence have changed significantly since the first colonial settlements, in every era of the American past children were assumed to be less competent and more vulnerable than adults. Since immaturity was assumed to render them incapable of making competent decisions about critical aspects of their lives, lawmakers concluded that children should not be as legally accountable as adults for their market, criminal, or other acts. Denying children the legal powers and liabilities of adults also meant that the law entrusted parents, the state, and other adults with significant legal authority over them. Consequently, the line between child and adult became the most critical legal boundary for young Americans. It has been, though, an uncertain marker because of the diversity of American children. Within the legal category of minors, children varied according to age, race, gender, capacity, and other critical factors and these variations complicated legal policies. Since the seventeenth century, the law dealt with this reality by devising particular policies for particular actions by particular groups of children. Thus, for instance, within the larger legal category of children, minors of various ages have had the legal power to wed before reaching majority. Taken together laws for children expressed the persistent conviction of legal policy makers that minors were a special class of citizens who required a different set of legal policies than adults.
Colonial Americans created a foundation for the law by transferring English policies to their new settlements. Fundamental changes then occurred in the first part of the nineteenth century when a comprehensive code for children was first devised. Other significant changes were made in the late nineteenth and early twentieth centuries when the role of the state in children’s lives was increased in significant ways. A second era of substantive change occurred late in the twentieth century. The result of these eras of legal change is a multilayered set of judicial decisions, statutes, and legal customs that has made the law more and more consequential in the lives of American children.
Although never as completely outside of the bounds of law as Hobbes’s declaration suggests, children in early America did find themselves enmeshed in a traditional European legal order. Children were part of a patriarchal system in which the household was to replicate the larger polity. Thus the father, like the king, served as head of the family while the wife and children were classified as subordinates. And in an era in which the definition of childhood meant that infants were treated as a distinct group but other children were considered more as members of the adult world, early integration of the young into the larger social order was the primary object of the law. In this system children were bound to their families and communities through webs of reciprocal duties and responsibilities, many of which were codified and enforced through the law. The most profound of these relationships fell under the traditional doctrine or legal rule of parens patriae, which made the monarch or the state the principal protector of children and other dependents. It was, and continues to be, the fundamental legal basis for all state intervention on behalf of children.
Colonial legislatures transferred the English legal system and its fundamental assumptions and policies about the young to the New World with relatively few changes. At its heart was the notion of legal reciprocity: children exchanged their labor for parental care. Parents, primarily fathers, assumed the responsibility to maintain and educate their offspring and to give them a suitable start in life. In exchange, fathers were granted the right to the custody of their children and in turn the right to a child’s labor. Mothers had relatively few legal rights to their children’s custody or labor. Equally important, the imposition of English rules governing the age of majority made it the primary legal dividing line between children and adults. Set according to English custom at twenty-one, the age of majority was the designated point at which a youth shed the disabilities of childhood and assumed the full rights and responsibilities of adulthood.
Majority marked off childhood as a distinct legal category and made children legal dependents, but it could not encapsulate all youthful legal actions. Instead, the law crafted rules for specific actions, such as the right of girls to wed at twelve and boys at fourteen or the criminal innocence of children under the age of seven. In this way, following English policies meant establishing both a clear legal line between children and adults and also secondary lines within childhood for particular legal acts. This combination of uniformity and specificity laid the basis for the legal treatment of American children well into the future. It also ensured that legal contests would be waged over what a minor could or should be able to do and what he or she could not or should not do.
Inheritance is an apt illustration of the transfer of English legal policies to the new world. English rules were dominated by a determination to keep property in the family. Its most revealing policies were primogeniture and entail. The former dictated that the family estate was to be bequeathed to the eldest son; the latter severely restricted the right of a child to sell or otherwise diminish the family estate. Both envisioned the filial duty of family maintenance and the right of the parent to control the child. These rules were followed in much of colonial America, particularly in the South. However egalitarian ideas in the New England colonies led to the creation of a new policy: partible inheritance. It allowed a parent to divide his estate among his offspring and suggested the emergence of new ideas of sibling equality. Critically, all of the inheritance rules expressed the traditional English belief that child welfare was best secured through property arrangements. Those with property had greater security and also greater independence. The inheritance rules also underscored the primal belief in parental responsibility, especially that fathers should support their children. The implications of these practices were clear in the Chesapeake colonies, where officials established special orphan courts because the high death rate due to malaria left countless children without parents. The purpose of the courts was to protect the person and property of the orphans. These courts recognized that children had interests of their own and used property as the children’s most important welfare protection and most fundamental legal right.
A similar mix was evident in one of the most significant colonial legal policies toward the young, apprenticeship. It rested on a contract in which masters pledged training and support in exchange for a child’s personal service. Fathers and, upon their death, mothers could indenture their children voluntarily because the right to an offspring’s services carried with it a corollary authority to assign those services to another. The master then stood in loco parentis, receiving the child’s services in return for parental support, nurture, and education. Indentures could also be forced upon a child by poor-law authorities after a finding of parental neglect or failure. These became the primary legal recourse of an emerging American approach to orphans, child poverty, abuse, and neglect. As in England, the practice was designed to teach children occupations and trades and to inculcate in them the habits of industry and thrift so that they would become self-supporting citizens. The system aimed to relieve the community of their support. The law governing apprenticeship thus typified English rules designed to integrate children into the adult world at an early age.
A similar approach emerged in the transfer of another traditional policy to the colonies. Bastards, as Anglo-American law had long classified children born out of wedlock, traditionally faced legal repression and discrimination. Statutes, doctrines, and customs used matrimony to separate legal from spurious issue. The latter suffered the legal status of filius nullius, the child and heir of no one. For centuries under English law, the bastard had no recognized legal relations with his or her parents, and no claims to inheritance, maintenance, or family membership. Nor did the illicit couple have any rights or duties toward the child. The English reluctance to help bastards was evident in their refusal to follow civil law and allow legitimation by the subsequent marriage of the parents. The only major reform in the law came with the inclusion of bastards in the Elizabethan Poor Law of 1601 and the demand that parents aid in their upkeep. Bastardy law had two primary purposes: repelling challenges to established family organization, especially property distribution, and preventing the public from being saddled with the costs of rearing children born out of wedlock. Beyond their streamlining of paternity hearings, colonial Americans made few alterations in the law.
Innovation in colonial laws regarding children was perhaps most evident in the creation of the most abject form of child legal dependency-slavery. The need of colonists for labor coupled with the settlers’ racism led to a fundamental modification of English law. Beginning late in the seventeenth century, lawmakers altered the legal pedigree of African-American children by decreeing that they would assume the status of their mothers, not their fathers. This shift helped ensure their continued enslavement. Slave children were also denied basic legal rights to family membership, could be sold at any time, and had the fewest legal protections of any children in the colonies. Though the adoption of slavery created the most dependent legal status of all colonial children, it was less anomalous legally than it would be later in the history of the United States, because the young were to be found in a number of dependent legal statuses, from apprenticeship to indentured servitude.
Colonial legal policies represented a transatlantic transfer of traditional European policies codifying the dependent status of the youth. They were premised on the belief that child welfare was best promoted by the creation of webs of reciprocity that made families and, when they failed, communities responsible for children. In exchange, both were given extensive rights to govern the young. Policies like the age of majority established a European base for laws that would continue to govern children’s lives far into the future. In this regime, children had few independent legal rights or powers and age was relatively unimportant as a source of distinctive legal rules. Thus in many ways the law was simply less significant in the lives of colonial children than it would be for later generations.
After the Revolution
In the years after the American Revolution the laws governing children were transformed in fundamental ways. Legal change was both a cause and a product of larger changes in the place of children in American society. New family beliefs and practices treated children more than ever before as distinct individuals with special needs. An individualization of the household implicit in the new view of the family led to an understanding of children as particular kinds of people with distinct rights and duties and relationships with the state. Age became a more important demarcation of legal rights and responsibilities, a development that challenged the Hobbesian view of children as beyond the reach of the law.
Determining a new legal place for the young became a major challenge for the antebellum legal order. It was one addressed primarily in the states because under reigning American conceptions of federalism the states had primary jurisdiction over children and families. As the principal definers of children’s legal status, state judges and legislators struggled to find a way to treat children somehow as distinct individuals and yet not adults in a system that tied legal power to individual autonomy. The result was to emphasize children’s needs. This approach found its most revealing expression in a new doctrine that would dominate legal debates about children into the twenty-first century: the best interests of the child. Early in the nineteenth century judges and other policy makers developed this doctrine by reinterpreting the parens patriae power of the state to include a newfound sense of children as having distinct interests recognizable by the law. The legal doctrine contained the assumption that children had their own needs and that others, most appropriately parents, and when they failed, judges or other suitable public or private officials such as the overseers of the poor, must determine them. At the same time, this doctrine supported the emerging notion of the family as a private institution that should be granted significant autonomy by deferring to family privacy and parental rights. In this way, the new rule sanctioned broad discretionary authority to determine the interests of children only in the event of family conflict or failure.
The best interests of the child doctrine emerged most directly out of child custody disputes between warring parents. Those disputes, in turn, were fueled by new ideas about child rearing and gender roles. A sense of children as vulnerable and in need of nurture coincided with a growing faith in the nurturing power of mothers to make the mother-child bond the most important connection in the family. One result was the determination of more and more women to keep their children when their marriages failed and the equally critical decision of more and more courts to grant them that wish. State and federal judges used the best interests of the child doctrine to make maternal preference the basic rule of American custody law. And they created subsidiary doctrines to support this reallocation of parental rights, most notably the tender years rule dictating that the custody of young children and girls must be given to mothers. The custody laws’ innovations redefined children’s welfare to stress nurture and maternal care rather than property holding and thus ensured that most children of failed marriages would stay with their mothers. Equally important, the new custody rules led to the creation of adoption, which authorized the legal construction of a family based on choice rather than blood ties. Beginning with Massachusetts in 1851, by end of the century almost every state had added adoption to its children’s code. Though legal battles were waged over the inheritance of adoptees and their new parents, the idea that child nurture warranted this kind of new custodial relationship won wide approval and thus diminished the legal power of blood ties in children’s lives.
The early-nineteenth-century reorientation of custody law also began to influence traditional children’s legal policies like apprenticeship and bastardy. The importance of mother-child bonds and the notion of the home as a nursery and refuge undermined the attractions of apprenticeship at the same time that the creation of public schools in the north also undercut the role of apprenticeship as a training device. Voluntary indenture narrowed to a method of vocational training for youths and young men. Involuntary indenture, however, remained a basic poor-law relief tool, though it existed uneasily with the new ideals of custody law. The primary concern remained reducing the burden of poor relief for local taxpayers, not child welfare. The differing fates of these two forms of indenture graphically illustrate the corrosive effect of dependency on the legal rights of the young. Laws for middle-class and upper-class children stressed the private common-law rights of parents and freedom from state interference, but the laws for poor children used dependency to bridge individual rights and to sanction broad public controls. And nowhere was that more evident than in the fate of free black children. Poor-law indentures, especially for blacks, came to resemble involuntary servitude as several states eliminated the educational requirements of their indentures and granted masters the right to indenture black children regardless of parental finances. When coupled with the complete denial of rights to slave children, these policies used the law to create an American system of apartheid for black children and suggest how race as well as class restrictions were being embedded in the laws governing American children.
The impact of the best interest of the child standard was more visible in bastardy law. Beginning in Virginia in the 1780s, state after state rewrote its laws to express the new conviction that children should not be punished for the sins of their parents and that they should be in families whenever possible. Statutes and judicial decisions declared the offspring of a couple who wed after its birth to be legitimate. They did the same for the children of annulled marriages. And even if parents failed to wed, state lawmakers lessened the penalties of illegitimacy by creating a new legal household when they turned the customary bonds between the bastard and its mother into a web of reciprocal legal rights and duties. Similarly, judges and legislators conferred reciprocal inheritance rights on bastards and their mothers and other kin. Through such policies illegitimate children began to have their own rights and responsibilities. Even so, American bastardy law never jettisoned two traditional influences: fiscally conservative local officials anxious to control child support costs, and a deeply ingrained prejudice against extramarital sexual relations. Indeed, protection of taxpayers’ pocketbooks reinforced a general legal conviction that proper child nurture required guardians capable of providing adequate material support and thus determined that children with parents who relied on poor relief for sustenance probably did not benefit from the new custody rights.
The emerging conviction that children required special legal rules also affected those deemed unruly, neglected, and delinquent. They became part of the reform of criminal justice and punishment in the era with the creation of specialized institutions for the young: houses of refuge. Beginning in New York in 1824, houses of refuge were constructed throughout the country to provide wayward or neglected youngsters with special treatment aimed at making them grow into responsible adults. Predicated on the parens patriae power of the state, the jurisdiction of a house of refuge was purposely broad. Children were confined in these institutions on the basis of crime, vagrancy, disobedience, or parental neglect. Lumping children at risk together in this manner received judicial sanction in 1838 when the Pennsylvania Supreme Court rebuffed a father’s challenge to the incarceration of his daughter without a trial. In ex parte crouse the court contended that “[t]he basic right of children is not to liberty but to custody…. We know of no natural right exemption from the restraints which conduce to an infant’s welfare” and thus equated the legal status of children at risk with their physical and social dependency. The justices went on to argue that placement in the house of refuge was treatment, not punishment, and that the public had a right to act when parents failed. The decision voiced a clear distinction between children and adults, while it blurred many differences among children by lumping together all juveniles deemed at risk.
As a result of developments like these, the legal place of American children was transformed during the years between the Revolution and the Civil War. The new laws expressed rules and assumptions of a legal order more explicitly stratified by age than ever before. They made the primary line between adulthood and childhood even more of a legal divider between rights and needs, autonomy and dependence. Children, like other dependents in a society fundamentally divided by class, race, and gender, were designated special legal individuals, and the legal officials created special policies like these for them. As childhood came to constitute a separate legal category, the law moved further from the Hobbesian view of youthful legal powerlessness.
In the turbulent years after the Civil War, the law regarding children underwent further change as it was selectively redrawn to include a greater role for state regulation of the young. A new assertion of public power and public interest in families challenged the now powerful American tradition of family autonomy: the right of families to be left alone and of parents to raise their children as they saw fit. That challenge was prompted by a growing sense among the middle and upper classes that families were in crisis. Beginning in the 1870s fears about disordered families stirred an intense national debate about the fate of children. Concern about abuse, delinquency, and neglect led to demands for greater state intervention based on the parens patriae doctrine. The resulting expansion of the role of the state in children’s lives also expressed a growing faith in law as a tool for changing children’s lives.
Self-styled child-savers took the lead in extending youthful dependence as they and their legislative allies filled states’ codes with new regulations that substantially enlarged the legal definition of risks facing children. Each addition, from bans on entering dance halls or skating rinks and prohibitions against joining the circus or purchasing alcohol, to specific criminal penalties against child abuse or neglect, represented a risk that now had to be prescribed. Each was premised on the assumption that childhood was a distinctive and vulnerable stage of life and that public regulation of child rearing had to be expanded to protect the young. These assumptions in turn were drawn in part from a new conviction that older children should be more precisely segregated into their own legal category of adolescence. Much of the debate and controversy of the era focused on this newly designated group of children and the determination that their childhood must be prolonged by keeping them in their families to gain more extensive preparation for adult roles. The intent, if not the full result, of changes like these was to use the law to increase children’s dependence on adults and to remove the young from the adult spheres of the marketplace and the civic community. This logic was evident in the successful campaign to raise the legal age of marriage from the old common-law standards of twelve for girls and fourteen for boys to sixteen and eighteen respectively. Protective legislation like this also challenged an earlier faith in parental supervision of their offspring by circumscribing parental authority and creating a more direct legal relationship between children and the state.
The new concerns of the era were evident in the prolonged campaign to use the law to ban child labor. Children filled many of the new places in the factories of industrial America and swarmed into urban streets selling everything from newspapers to artificial flowers. Child savers sought to redefine childhood by excluding work from the lives of children for the first time in the country’s history. They turned to law as their tool of reform. By 1900, seventeen states restricted the age, hours, and conditions of youthful employment. But reformers wanted a national ban, as in Europe, where by the end of the nineteenth century nearly all countries had passed laws that prohibited or restricted child labor. They faced numerous opponents: manufacturers, particularly southern textile owners, who wanted young workers; working-class and immigrant parents and their allies who defended child labor on the grounds of the income that it brought to poor families; farmers who wanted the seasonal labor of children; and other critics who resented the intrusion by the government into their family work traditions. Resistance represented a recognition that child labor reform sought to sever the traditional common-law notion of family reciprocity in which children exchanged their labor for parental support. In an effort to entrench child nurture as the fundamental duty of families, child labor legislation attempted to restrict parental rights to children’s services yet continued to insist on parental support for children. Reformers succeeded in securing congressional action in 1916 and again in 1920, only to have the Supreme Court declare the acts unconstitutional each time. They also failed to secure a national amendment. Despite these setbacks national restrictions on child labor were finally approved in 1941 when the Supreme Court upheld the Fair Labor Standards bill that prohibited the employment of children under sixteen in industries engaged in interstate commerce and young people under eighteen in dangerous occupations. As a result, the law provided yet another definition of childhood by restricting the place of the young in the workplace and by creating a growing thicket of regulations for youthful workers that regulated when, where, and how long they could work.
Reformers had more immediate success in another attempt to use the law to redefine childhood: compelling children to go to and to stay in school. The campaign took place in the states, since education was thought to be a state, indeed a local concern. Compulsory education laws were championed as another way of taking children out of the workforce and prolonging childhood. They proved to be a popular reform; thirty-two states had compulsory school attendance laws by 1900, and by 1918, with their passage in Mississippi, all the states had them. As its advocates intended, compulsory education and the increasing curricular and disciplinary authority of teachers and school officials further regulated parental authority over children and made schooling a critical component of the legal definition of childhood and children’s experience.
No development of the era more fully epitomized the new approaches to children and the law than the creation of the juvenile court. Advocates of special courts for children argued that adult standards of criminal responsibility should not be applied to children because the young lacked the moral understanding and judgment of adults. They demanded a separate juvenile justice system that emphasized rehabilitation, not punishment. These sentiments led them to advocate a legal trade-off: children forfeited due process rights to have an attorney, to face a clear charge, to an open hearing, and other criminal law protections in exchange for rehabilitation. The idea proved very appealing. Chicago created the first court in 1899 and by the 1920s every state had authorized the establishment of juvenile courts in major cities. Though critics complained that the new tribunal forced children to sacrifice too many rights, judges disagreed and accepted it as a legitimate exercise of the states’ parens patriae powers. According to the Pennsylvania Supreme Court, “Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship has failed. No constitutional right is violated.” Equally important, the courts’ reliance on foster families and adoption rather than institutional placements whenever possible and their abandonment of apprenticeship also demonstrated how a nurture-based definition of child welfare had been embedded in the law.
The most radical departure of the era was the creation of a special set of legal rights for children. Devising rights for children proved difficult because the existing concept of rights was designed only for adults who could assert their own claims directly against the state. Children could not do this, nor did reformers want them to. Instead they fashioned an idea of paternalistic rights that defined children’s rights in special age-bound terms of needs and parental failure instead of the individual autonomy associated with adult legal rights. Reformers did so by recasting education, socialization, nurture, and other fundamental needs of children as rights. In this way children’s rights acquired a restrictive meaning. Children did at times assert more adult-like rights. Newsboys, for instance, organized a successful strike against New York press magnets based on their belief in their rights as workers. And sons and daughters used the juvenile court to renegotiate authority within their families by seizing the right to lodge complaints against abusive parents. Nevertheless, in most cases it was not children, but parents, reformers, or bureaucrats who asserted the newly proclaimed children’s rights. For example, United States Supreme Court decisions in the 1920s such as Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) used children’s rights to schooling to construct a constitutional foundation for parents’ control of their children’s education. Thus the initial conception of children’s legal rights was steeped in paternalism; it translated children’s needs into rights without jettisoning their dependent status. Such rights were unusual because they could not be exercised or waived by their holder. In this way, paternalistic rights institutionalized the irresolvable tension between treating the young as family dependents or as autonomous individuals.
In this era, most legal policies for the young devised in the previous period remained in place, but revisions used the law to increase the presence of the state in children’s lives and to create a more direct relationship between children and the state. The result was greater legal surveillance of children and yet also the emergence of the first legal rights for young Americans. These two seemingly contradictory developments suggest both the depth and significance of the legal developments of the era.
The law regarding children took another dramatic turn in the last half of the twentieth century. Basic legal rules and practices underwent enough changes to warrant comparisons with the transformations of the early nineteenth century. At the core of the era’s changes were two new realities. First, the federal government, and particularly the federal courts, assumed a powerful role in setting legal policies for America’s young people. Consequently, many of the endemic tensions in American law that had plagued state lawmakers in the nineteenth century began to bedevil federal lawmakers in the twentieth. Second, rights for children underwent a major redefinition. In an era dominated by rights struggles, children’s legal rights became a movement. For the first time children’s plight in America was explained as a consequence of the lack of adult rights: an assertion challenging the longstanding belief that the denial of adult rights to children required no justification. The impact of the twin developments was evident in almost every legal category as the laws governing children moved even further from their Hobbesian roots.
Particularly revealing were changes in the laws of child custody, a critical issue in an era when almost half the nation’s children would live in families torn asunder by divorce. Amid broad changes in gender roles and beliefs, the central tenet of custody rules-maternalism-came under attack both as an ideal and as a policy as support for the presumed superior ability of mothers to raise children eroded. Consequently, basic custody doctrines like the tender years rule, which presumed that infants and young children were best cared for by their mothers, were eliminated or had their significance reduced in nearly all states. Similarly, the Uniform Parentage Act recommended that the claims of mothers and fathers be balanced equally. Though most awards of physical custody still went to women, the new rules enabled more fathers to secure custody than ever before. They also led to new custodial arrangements such as joint custody, shared custody, and divided custody. Because of the magnitude of divorce, the custody changes significantly increased the likelihood that young Americans would encounter the law.
Similarly momentous changes occurred in the laws governing illegitimacy. A series of Supreme Court decisions in the 1960s and 1970s remade the law amid rising rates of illegitimate births, problems with unpaid child support by putative fathers, concerns about the psychological impact of illegitimacy on children, increasingly reliable paternity tests, and reevaluations of the social utility of illegitimacy as a means of policing sexual misconduct. The court made illegitimacy a constitutionally suspect classification and granted children new rights to be treated as individuals and not punished for the sins of their parents. They did so in cases in which the court ruled that there existed no rational basis for denying illegitimate children the right to recover for the wrongful death of their mothers and in which it directly repudiated the age-old policy of using illegitimacy to check immorality and sexual promiscuity by declaring that states must have more convincing arguments than the “promotion of legitimate family relations” to support such policies. Equally dramatic, courts began to give custodial rights to unwed fathers for the first time in addition to their traditional obligation of support. And the 1973 Uniform Parentage Act urged states to jettison the concept of illegitimacy entirely and equalize the inheritance, wrongful death, and workers’ compensation rights of all children. However, neither illegitimate children nor unwed fathers won rights as extensive as their legitimate and married peers. The court narrowed but retained the law’s long-standing moral commitment to matrimony by limiting the rights of illegitimate children and their parents. Critically, like the continued resistance to giving greater custody rights to step- or foster parents, the retention of discrimination based on birth meant that blood ties continued to be the most important legal bond for children.
Children also acquired new national protections in the era. During the 1950s child abuse was rediscovered as a result of the identification of battered child syndrome. Accordingly, every state revised its laws on child abuse to include more stringent penalties and reporting requirements. Congress also passed child abuse prevention measures for the first time and created a national reporting system. Child sexual abuse, a little-recognized problem in previous eras, became prominent as a threat to the nation’s young. Panic over sexual abuse led virtually all states to rewrite their abuse and neglect statutes to specify particular penalties for this crime. These legislative actions and the accompanying national concern about child abuse led to the conviction that children had a legal right to a life free from abuse.
Developments like these demonstrate the growing importance of the rights of children in this legal era. Statutory changes, judicial decisions, and even a constitutional amendment significantly increased juvenile rights, particularly for adolescents. The federal courts, especially the Supreme Court, played a key role in recasting children’s rights. Since the 1930s the courts had been increasingly receptive to claims of individual liberty and due process rights. They applied those concerns to children beginning in 1954 with Brown V. Board of Education. The unanimous decision not only declared segregated schools unconstitutional, but it presented the ruling in terms of children’s rights: “In these days it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all children.” Children’s rights expanded further in a series of cases that gave children constitutionally protected rights they could assert against the state and even against their parents. In Re Gault (1967) granted youths coming before juvenile courts procedural rights such as the right to counsel and thus restored some of the rights lost when the juvenile courts had been created. Tinker V. Des Moines (1969) ruled that high school students had the constitutional right to freedom of speech. Decisions like these applied adult models of rights to children. And those rights were increased by corresponding statutory changes such as medical emancipation laws and lowered drinking ages. Finally, the twenty-sixth amendment lowered the voting age to eighteen and thus redefined the civic rights of adolescents. Tellingly, “age-blind” rights became the goal of children’s rights advocates, who argued that children should have the same rights as adults. Indeed, some even called for the abolition of minority status, which was likened to slavery and coverture.
However, the legal changes of the era did not eliminate the use of age as a means of determining legal rights. Instead resistance arose to the notion of autonomous children’s rights and thus renewed the debate over the legal status of the young. Even the Supreme Court consistently qualified its assertions of children’s rights. In Tinker Justice Potter Stewart had insisted that the rights of children were not “co-extensive with those of adults.” And in Ginsburg v. New York (1968) the court upheld limits on access to obscene materials to those over seventeen, with one justice declaring: “I think that a State may permissibly determine that, at least in some precisely delineated areas, a child-like someone in a captive audience-is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Such caveats underscored the persistence of legal policies that assumed the dependent status of children and the paternal power of the state. And amid fears of mounting risks to the young-parental abuse, teen pregnancy, suicide drug addiction, gang membership-the children’s rights movement itself faced growing opposition. Critics argued that more rights put children at risk instead of helping them. They challenged the premise that autonomous adult rights were the most effective means of raising and resolving children’s problems. Indeed a growing number of opponents charged that increased rights had under-mined child welfare by fostering adversarial family relations and undermining necessary parental and school authority.
These concerns led to another round of legal change in the last decades of the twentieth century. States began to revise some of their earlier endorsements of greater rights for children. For instance, Michigan, which in 1971 had lowered the minimum age for purchasing alcoholic beverages from twenty-one to eighteen, raised the age back up to twenty-one seven years later. Similarly, state legislators sought to impose greater restrictions on the right of young women to obtain abortions without parental consent. And in response to increases in violent juvenile crime, states rejected rehabilitation in favor of policies that made it easier for prosecutors to try adolescents who commit serious crimes as adults and to sentence them to adult prisons. Doing so erased not only rights but previous protections that resulted from agedefined dependency.
Fears about children viewing obscene materials led to the Communications Decency Act of 1996 and Children’s Online Protection Act of 1998, which sought to protect children by asserting the rights of parents and other adults to control what they see, by prohibiting the use of the Internet for sending indecent material to children, and by imposing responsibilities on those who use the Internet to protect minors. Though declared unconstitutional because of vague and overreaching terms, attempts to limit juvenile computer access continue. As a result of such policies, children continued to have a separate age-based body of law even as they gained new adult-like legal rights.
In 1993, the Illinois Appellate Court offered its reading of the history of children and the law in the United States. The judges declared: “Fortunately, the time has long past when children in our society were considered the property of their parents. Slowly, but finally, when it comes to children even the law rid itself of the Dred Scott mentality that a human being can be considered a piece of property ‘belonging’ to another human being. To hold that a child is the property of his parents is to deny the humanity of the child.” This judicial declaration certainly captured a part of that history, particularly the growth of distinctive laws and especially legal rights for the young. And it suggests how fundamental the legal changes have been since Hobbes placed the young beyond the law. However, the progressive vision of constant improvement in the legal condition of children masks the persistence of conflict and controversy and ignores the complicated relationship between children and the law. Greater legal autonomy for American children has not always meant better lives or even recognition of their humanity, though it has meant the law assumed a greater and greater presence in the lives of children. Consequently, at the dawn of the twenty-first century age continues to be a fundamental dividing line in the law. And that will surely be the case in the future as well.