Immature Citizens and the State
Vivian E. Hamilton
William & Mary Law School
January 10, 2011
Brigham Young University Law Review, Forthcoming
William & Mary Law School Research Paper No. 09-64
Citizens are born, but they are also made. How its citizens come to be - whether the educations they receive will expand or constrain their future options, whether the values they assimilate will encourage or dissuade their civic engagement, etc. - fundamentally concerns the state. Through the power it wields over a vast range of policymaking contexts, the state can significantly influence (or designate those who will influence) many of the formative experiences of young citizens. Young citizens’ accumulated experiences in turn can significantly influence the future mature citizens they will become. The state insufficiently considers the cumulative nature of its citizens’ development, however. Discrete spheres of policy- or law-making may be internally consistent, but they lack consistency when combined over time and across a range of contexts - which is the way in which developing citizens experience them. As a result of this discontinuity, the state at best squanders opportunities to more effectively advance its ends with respect to immature citizens; and at worst, fails to meet its most basic obligations to them.
This Article develops a framework to guide the decisions that affect the young across a range of law and policy contexts, providing consistency and a coherence that will better serve those citizens and further the state’s ends. It grounds the framework in the core values and ends of the liberal democratic state, which dictate the state’s most basic obligations to its citizens, and its requirements of them. It accounts for the interests and constitutional rights of both parents and children. To better understand how these might change as the young develop to maturity, it reviews the processes of cognitive development, drawing on research from a range of disciplines within developmental science. This review examines developing capacities, ongoing deficiencies, and the effects of external influences on development. It then integrates these theoretical, constitutional, political, and developmental considerations into a framework comprising the ends toward which decisions affecting the young should aim: (1) guaranteeing parents’ liberty to form and raise a family; (2) denying anyone absolute authority over the immature, while transferring to the immature themselves authority in realms where they have reliably attained decision-making maturity; (3) ensuring that young citizens will attain maturity with their entitlement to life-deciding liberty intact; and (4) ensuring that young citizens will attain maturity having acquired the capacities to fulfill the basic obligations of citizenship.
To begin illustrating the framework’s potential effects, the Article proposes a set of policies consistent with it. For infancy and early childhood, it proposes minimizing interference in parenting. For adolescence, it endorses obligatory, out-of-home education. It more generally proposes that decision makers identify contexts in which young citizens can make competent self-regarding decisions. The Article argues that by mid-adolescence, these include making health care decisions and voting. It also argues for changes to policies in other contexts where young citizens’ decision making is likely to remain compromised, even into young adulthood, including driving and combat.
Because the scope of policymaking affecting the young is so vast, future projects will carry forward and expand upon the policymaking implications of the framework set out here.
Number of Pages in PDF File: 94
Keywords: children and juvenile, adolescents, emerging adults, parents' rights, children's rights, cognitive development, developmental psychology, developmental cognitive neuroscienceAccepted Paper Series
Date posted: January 11, 2011 ; Last revised: February 1, 2011
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