Friday, April 8, 2011
Samantha Godwin (Georgetown Univ. Law Center) has posted "Children's Oppression, Rights and Liberation" (4 Northwestern Interdisciplinary L. Rev. (2011) on SSRN. Here is the abstract:
This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and stably arranged otherwise by synthesizing Eileen McDonagh’s distinction between decisional autonomy and bodily integrity with Howard Cohen’s writing on borrowed capabilities and child agents. My first conclusion from this analysis is that age based classifications should not be presumed to be rational.
The paper then proceeds to apply these theoretical arguments to specific legal questions. I suggest an argument for treating children as a suspect class for the purposes of equal protection analysis, as well as recognizing that many of the ways children are legally disadvantaged implicate their fundamental rights, and that many (but not all) age based classifications should therefore be subject to strict scrutiny. I then go on to analyze specific legal issues such as voting rights, corporal punishment, runaway children, and due process in juvenile justice using this framework.