Recommended Citation
Jeremiah Chin, The Next Generation, 112 KY. L.J. 729 (2024), https://digitalcommons.law.uw.edu/faculty-articles/1091
Publication Title
Kentucky Law Journal
Keywords
Federalism, Children's Rights, Critical Race Theory, Constitutional Law
Document Type
Article
Abstract
What would the law look like if we let children remake it? Laws govern, classify, and circumscribe children who inherit the law and its consequences. Discourses of power invoke children as rhetorical strategies to gain political favor or obviate a position—yet children are uncritically excluded from participating in the systems that control them. Children are subjected to the laws and objects of legislation, but denied the rights, autonomy, or authority to participate in the making of law and policy. Even the conceptualization of the constitutional rights of children is treated as an assumption, ill-defined and under theorized by traditional legal scholarship. This paper answers Catherine Smith’s rallying cry to reconsider constitutional law from a children’s rights perspective by exploring how children may be incorporated into the jurisprudence of state courts, state constitutional law, and local governance. Children have been, and continue to be, on the frontlines of state and federal battles for racial equality in schools. Children in Montana are leading the charge in calling for state action on climate change. Children’s rights of speech and association should be cornerstones of resistance to transphobic and homophobic legislation that would use rhetorics of protection to deny the autonomy of trans children and adults. State courts and constitutions are fertile ground for recognizing, empowering, and furthering the constitutional rights of children.
This paper therefore proceeds in three parts: theory, courts, and governance. First, I echo and emphasize the work of children’s rights scholarship, building on Critical Race Theory other forms of critical legal scholarship, to reframe doctrinal assumptions of rights and power through the lens of those marginalized by the law—in this case, children. Second, I consider how this reframing of rights and power builds on the sovereignty of state courts and constitutions in centering the rights of children independent of their rhetorical or familial roles. I build on the recent decision in Held v. Montana, where the state court found sixteen Montana youth had standing under the state constitution to challenge the state’s energy policies as inadequate in preventing the depletion and degradation of the environment due to climate change. Third, I highlight how to involve children in the institutions that govern them most directly, looking at how municipalities create Youth Councils and Childrens’ Cabinets as means of actively involving children in the substantive and procedural governance of their cities. Ultimately, I argue states and localities must uphold their promise as laboratories of democracy by ensuring that children can participate in governance and imagine possibilities of the future without having to wait to come of age to vote.