A Constitutional Jurisprudence of Children's Vulnerability

97 Pages Posted: 10 May 2018 Last revised: 26 Jun 2018

See all articles by Lois A. Weithorn

Lois A. Weithorn

University of California Hastings College of the Law

Date Written: December 1, 2017


The United States Supreme Court identified “the peculiar vulnerability of children” as one of the “three reasons” for differentiating the treatment of children under the Constitution from that of adults. Yet, although explicit and implicit characterizations of children as vulnerable abound in the Court’s opinions and scholarly commentary, there has been little analysis of how the construct of vulnerability mediates children’s relationship to the Constitution. This Article examines the Court’s analytic uses of constructions of children’s vulnerability. Informed by legal scholarship and empirical findings on human vulnerability emerging from the field of bioethics, philosophy, psychology, and developmental neuroscience, the Article deconstructs the concept of children’s vulnerability and proposes five categories derived from the Court’s constitutional jurisprudence and interdisciplinary scholarship: harm-based vulnerability; influence-based vulnerability; capacity-based vulnerability; status-based vulnerability; and dependency-based vulnerability. It applies the classification to representative cases from among the approximately one hundred relevant cases decided by the U.S. Supreme Court. The Article contextualizes the analyses of constitutional jurisprudence and children’s vulnerability with discussions of relevant social history and developmental science. It then critically examines the Court’s use of vulnerability constructs in a narrower subset of cases, exploring the relationship between these constructs and relevant empirical knowledge. In conclusion, the Article critiques the often-tenuous relationship between the state of scientific knowledge and the Court’s characterizations of children’s vulnerability. The Court frequently relies upon these constructs when determining constitutional questions. This Article contends that when the Court makes “factual” assertions about children’s characteristics or functioning--assertions that are the subject matter of developmental science--these assertions should rest on the best available evidence. The Article recommends continued scholarly attention to, and scrutiny of, judicial reliance on notions of children’s vulnerability in constitutional analysis.

Keywords: constitutional law, children and the law, science and the law

JEL Classification: K1, K19

Suggested Citation

Weithorn, Lois A., A Constitutional Jurisprudence of Children's Vulnerability (December 1, 2017). Hastings Law Journal, Vol. 69, No. 179, 2018; UC Hastings Research Paper No. 293. Available at SSRN: https://ssrn.com/abstract=3168955

Lois A. Weithorn (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-565-4660 (Phone)
415-565-4865 (Fax)

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