Between Dependency and Liberty: The Conundrum of Children's Rights in the Gilded Age
David S. Tanenhaus
University of Nevada, Las Vegas, William S. Boyd School of Law
Law and History Review, Vol. 23, No. 2
Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating how the Illinois Supreme Court confronted the conundrum of children's rights in the Gilded Age, the essay reconstructs how lawmakers established a viable system for guaranteeing at-risk children due process protections as well as the positive rights of social citizenship. Significantly, this creative moment occurred at a transitional point in American legal history, when lawmakers began developing liberal constitutionalism. Given the subsequent difficulties that liberal constitutionalism has had in protecting children's due process rights, providing for their basic needs, and giving them a voice in the legal process, the essay contends that it is worth engaging this earlier history.
Keywords: children, law, history, children's rights, dependency, juvenile justice
JEL Classification: I30, Z00
Date posted: December 7, 2007