The Child Question
48 Pages Posted: 17 May 2014
Date Written: 2013
This essay contributes both to children’s rights research and the growing critique of the equal protection doctrine by illustrating the limitations of the equality metric for those who do not measure up to the ideal subject. Part of a series of articles that analyzes children’s status, authority, and freedoms from the child’s standpoint, this paper illustrates the limitations of liberalism’s negative rights, which provide little direct value to those who are unable to exercise such rights. The Child Question posits an amendment to the U.S. Constitution that affords children equal protection as compared to adults. The Amendment would cast as suspect government regulation that infringes on children’s liberty, such as subordination to adults, including adult family members; the forced and unremunerated labor of attending school; multiple limitations on market transactions, including labor, wages, and purchasing; disenfranchisement in the political realm; and limited moral authority.
This exercise illustrates that equality is all but impossible for most children throughout most of their childhood, not because young people are incomplete and vulnerable, but because law and society construct the category of childhood as both different from and unequal to adults. Thus even heightened scrutiny of the burdens and privileges of our present regulation of childhood may lead to more liberty for children and less protection, but such scrutiny also demonstrates the weaknesses of the equality metric for children (and for others who cannot exercise full autonomy), because the equality’s comparator is the able-bodied, able-minded, adult male. Like other subordinate legal categories then, children may experience equality as compared to the liberal subject only so far as they can perform equally.
Keywords: children, rights, equality, equal protection, autonomy, sex, education, juvenile
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