Guideposts for Thinking and Discussion: The Supreme Court and Young People
The Relationship of the Supreme Court to the Young People
Given that most adults in the Eighteenth century subscribed to the adage that "children should be seen and not heard," it's not surprising that the authors of the founding documents of the United States were silent about young people, except for the last-minute preamble inserted into the Constitution by Gouverneur Morris, which generically promised to "secure the blessings of Liberty to ourselves and our Posterity." English common law had presumed that the relationship of government to children was extraordinary rather than routine. Children were the property of their parents, in particular their father (or the apprenticeship master to which the father delegated his authority.) Parents owed their children general support, a basic education, job-training, and religious instruction. Children owed their parents support in old age or infirmity, regardless of whether they had been good parents or not. Government stayed out of this relationship, except in extreme abuse or negligence when local church or civil authorities might step in, but certainly not regional or national government officials. So, silence in the founding documents of the federal government should not be surprising.
What is surprising is that the revolutionary era was a time of profound change in society's attitudes towards children. This change is reflected in published materials directed towards parents and also personal correspondence of parents. Many of the founders were parents who had opinions about the rearing of their children. Many were also step-parents in an era when partners might die young from contagious diseases, untreated infections, and child-birth; in an era of high infant mortality, many also had suffered the loss of a child or step-child. (Thomas Jefferson and Martha Washington had lost a spouse; John and Abigail Adams lost a fourteen-month-old daughter, Susanna and had a still-born daughter, Elizabeth.)
Most founders had been raised, whether Puritan or Anglican with the theological article of faith of "original sin," that all humans had inherited damnation because of Adam's original sin in the Garden of Eden. The first best-selling children's book, A Token for Children, written in 1642 by James Janeway and Cotton Mather warned, "Are the souls of your children of no value? They are not too little to die, they are not too little to go to hell, they are not too little to serve their great Master, nor too little to go to heaven!" English common law reflected this attitude of treating children as small adults; however, it presumed that children under seven were too young to form criminal intent (doli incapax) and both colonial and early state law adopted this standard.
Enlightenment philosophers triggered a revolution in attitudes towards children, as well as government. John Locke rejected the theological argument that children were born tainted by the evil of "original sin," and instead argued that they were born like a tabula rasa (blank slate,) free to form their own character, whether for good or for evil. This philosophy led to a change in child-rearing practices, which is illustrated in the private correspondence between John Adams and his wife, Abigail. John fretted about his absences from home, saying that he would have preferred to be "school master" to his own children, teaching them to "write, cipher, Latin, French, English, and Greek." In a June 29, 1774 letter to Abigail, he urged, "Let us therefore my dear Partner, from that Affection which we feel for our lovely Babes, apply ourselves…and above all Cares of this Life, let our ardent Anxiety be, to mould the Minds and Manners of our Children. Let us teach them not only to do virtuously but to excell. To excell they must be taught to be steady, active, and industrious." The role of the government in children's lives changed as state and local governments assumed responsibility for public education and also began to differentiate punishment of juvenile offenders from that of adult criminals. The national government first assumes a role in the lives of young people via education in the territories, written down first in the Land Ordinance of 1785 and then in the Northwest Ordinance of 1787.
When is a young person a minor or a juvenile?
The U.S. Constitution is silent about the age of majority, so there is no constitutional definition of a minor. It sets a minimum age for representatives to Congress (25) and the president (35). When the first U.S. Census was conducted, in 1790, only the names of heads of household were recorded. However, census-takers recorded the number of free white males over the age of sixteen, the number of free white males newborn through fifteen, the number of free white females of all ages, the number of any other free people of all ages, and the number of slaves. States established the rules about who could vote (typically white males over twenty-one), but property-holding was more significant than age in determining suffrage.
In 1971, the Twenty Sixth Amendment to the Constitution was adopted setting the legal age for voting at eighteen. However, the National Minimum Drinking Age Act of 1984 restricts consumption of alcoholic beverages to persons aged twenty-one or older. Federal child labor laws set different legal ages for agricultural (ten and above), service and non-hazardous industry (fourteen and above, with exceptions for child entertainers), and hazardous work (eighteen). Each of the 50 states has its own age-related laws regarding compulsory school attendance, testimony guidelines for young witnesses, licensing for vehicles, drinking ages, and so forth. From time to time, some justices of the Supreme Court have used the term "maturity" in an opinion or dissent, but to date, none has actually defined the term. The ambiguity derives not only from conflicting legal definitions but also from ongoing changes in the way society regards the duties of parent to child, child to parent, and both to the greater community or state. The bottom line is that there is no universal legal agreement about the age when a child passes from immaturity to maturity or from minority to majority.
On the other end of the spectrum, there is no exact age for the beginning of childhood because it is inextricably caught in the political, social, and theological debate over when life begins. Roe v. Wade describes "viability," as taking place when a fetus is capable of "meaningful life outside the womb." However, advances in medical technology have steadily pushed back the gestational age at which a newborn can survive, so "viability" has proved to be an imprecise term. So far, the Supreme Court has held that legal rights (to life, protection from abuse, support, etc.) begin with birth. Lacking a defined beginning or end, our modern concept of childhood remains imprecise, just as it was at the time the Constitution was written.
The relationship of the Supreme Court to young people
With so many discrepancies between the states and also federal statutes, the Supreme Court has emerged as a key player in defining the legal status of young people. The Court has heard hundreds of cases between 1918 and the present in which children figure. Five general categories which have emerged are a) economic and property issues--including child labor, child support, inheritance; b) parents and family--including parental rights, custody, visitation, parental consent and notification in abortion cases, citizenship; c) health and safety (abuse, neglect, medical treatment); d) juveniles and the criminal justice system--including double jeopardy, due process in the juvenile courts, coercion, sentencing, capital punishment; and e) education and students' rights (including equal opportunity to receive education, privacy rights, corporal punishment, and basic freedoms of speech, religion, press, and association.)
Rulings by the Courts of Chief Justices Edward D. White (1910-1921) and William Howard Taft (1921-1930) resisted expansion of the role of state and federal government and affirmed the traditional view that parents had a fundamental right to direct the education of their children and benefit from the labor of their children. They also saw no constitutional basis for the federal government to interfere with states' regulation of child labor.
The shift in the Court's views about the role of the federal government's role in the life of young people can be traced to the Court of Chief Justice Charles E. Hughes (1930-1941.) Although the Court was not as receptive to expansion of the role of the federal government as President Franklin Roosevelt wished, it nonetheless responded to the political and social changes unleashed by the Depression and New Deal. Society's greater interests were put ahead of those of the family in several key rulings. The Court upheld the power of the state government and federal government to regulate child labor. It also placed the need to promote patriotic values ahead of parents' religious conviction. Since the Hughes Court, the pace of cases involving young people has accelerated dramatically, in part because the Supreme Court recognized the silence of the Constitution on the role of the federal government in the lives of young people could no longer remain unaddressed.
The Supreme Court thrives on history and respect for previous decisions and this has an impact on young people
Having seen the perils of totalitarian regimes during World War II and the Cold War, the Supreme Court reconsidered the expanded authority of the federal government during the tenures of Chief Justices Harlan Stone (1941-1946) and Fred M. Vinson (1946-1953.) Two years after ruling that compulsory flag salute was constitutional; the Court reversed itself and decided that individuals' religious freedom was more compelling than state-government promoted patriotism. However, the Stone Court sustained the right of a state government to curtail child labor, despite parents' religious beliefs; it also struck down part of the Fair Labor Standards Act pertaining to child labor in the service industry, leaving such regulation to state government. The Vinson Court heard a series of cases involving religious establishment in the schools and in nearly every instance curtailed state governments' efforts to assume a role in the religious instruction of children. The Vinson court did not consider, however, (any more than its predecessors) whether children themselves had constitutional rights until 1948, when a divided Court decided that a confession coerced from a fifteen-year-old boy had violated his rights as certainly as if he had been an adult.
As with many areas of Supreme Court history, it was under the leadership of Chief Justice Earl Warren (1953-1969) that the Court transformed American life. Through a series of landmark opinions, the Warren Court affirmed the rights of children individually to constitutional protection, whether in the area of equal access to educational opportunity, due process in criminal cases, protected liberties under the Bill of Rights, or inheritance rights. Through the Court, the federal government committed itself to protection of children's rights, especially from state governments, most notably when Brown v. Board of Education ordered federal courts to insure equal educational opportunities for African-American children.
The movement toward applying the Bill of Rights to young people under the Fourteenth Amendment largely continued under the Court led by Chief Justice Warren Burger (1969-1986). Constitutional protections extended to young people included criminal rights related to standards of evidence and double jeopardy. Burger Court decisions upheld equal access to education regardless of race, sex, language or ethnic group, citizenship status, and physical or mental handicap, along with due process in school discipline. Limited privacy rights for children were acknowledged and protected through opinions in cases involving parental notification and consent for abortion and medical treatment denied by parents. However, many of the Burger Court's rulings advanced rights of parents and government, without consideration of children's rights. Biological parents' rights were broadly strengthened in cases concerning religious education, adoption, custody, and termination of parental rights. The Burger Court also set limits on young people's rights at school in cases involving religious exercise, free speech, school newspapers, drug testing, corporal punishment and searches on school property.
The Court presided over by Chief Justice William Rehnquist (1986-2005) saw little broadening of children's constitutional rights except in affording general recognition of the privacy rights of young women in parental notification cases, supporting limited witness protection for children testifying in court and, most recently, and restricting application of the death penalty to those under the age of eighteen. The Rehnquist Court's tendency was to block expansion of the role of the federal government, thus it ruled that state governments are not obligated to prevent child abuse and overturned federal legislation to prevent Internet pornography, including child pornography. Although the Rehnquist Court declared there was no fundamental right to an education, it nonetheless upheld women's access to equal educational opportunities.
The Supreme Court is a battlefield whereon ordinary young people struggle to obtain justice
Child celebrities may grow up to be obscure or famous, but few are forgotten. Although the children who have gone to the Supreme Court have had as great, or maybe even greater impact on the lives of children than young performers, few are remembered. Only Linda Brown has achieved a small measure of recognition, although she could probably walk by 99 percent of Americans without being noticed. As with so many of the young people who have gone to the Supreme Court, she was an ordinary child, one who liked her friends and loved her family. She did not intend to be a pivotal figure in history, never acted that way before the case, or during it, and today lives unpretentiously. Yet, for a short period of her childhood, she lived in the crucible of public attention receiving praise--and also receiving death threats. We know how the Court decides cases, but we are often left wondering about the long-lasting impact on the child.
John Dagenheart, Betty Simmons, Raymond Parpart, Joshua DeShaney, Gerry Gault, Dwight Lopez, John Tinker, James Acton, Billy Gobitas, and Frieda Yoder are not familiar names to most of us, yet just like Linda Brown, each one was a child at the center of a Supreme Court case.
Some of these children "won" when their families or teachers won, such as Raymond Parpart who was allowed to learn German so he could participate in his family's prayers. Some children "won," and all future children "won" because of them. Gerry Gault, whose six-year sentence for an obscene phone call (one he might not have even made) shocked the Supreme Court into overturning his conviction and thereby guaranteed due process to all accused juveniles. John Tinker and his siblings' contested black armbands won all students the right to unobtrusive political protest. Dwight Lopez, by maintaining he was an "innocent bystander" secured for all students due process when facing lengthy school suspensions.
Other children "lost," as when a Billy Gobitas who loved his God more than his country was told by the Court that regardless, he must salute the flag to attend school. James Acton learned that to play football, yes, he would have to submit to random drug testing. Joshua DeShaney, left profoundly retarded by an abusive father, never understood that he lost--no more than he could have understood if the Court's decision had been different. Supreme Court decisions do not necessarily change lives.
For most of these children, the Court decision only decided the law of the case, not the quality of their lives, much less the quality of their afterlives. Thirteen-year-old John Dagenheart kept his job at a cotton mill, but was that the best for him? Frieda Yoder did not have to attend high school, but did she ever regret losing the opportunity to become a pianist, astronaut, or oceanographer or was she content with achieving salvation the Amish way? Nine-year-old Betty Simmons no longer distributed Jehovah's Witnesses tracts on the streets of Boston, but did she rejoice or did she quake in fear that she might have lost her salvation? Even the best-written opinion of the Supreme Court cannot tell us those answers.
The justices of the Supreme Court from diapers to black robes
Justice John Paul Stevens acknowledged in one of his dissents that the members of the Court are "at least two generations" out of touch with lives of young people. Yet, as with any case before the Supreme Court, those attorneys arguing cases involving children must cope with the average age of the Court they draw, whether it is composed of the "nine old men" of the Roosevelt era, or a younger, more diverse group. There is little doubt that the Court under Chief Justice John Roberts (2005-present) will have occasion to consider the often competing rights of children, adults, parents, school systems, state governments, and the federal government. Whether the decisions of this Court will define childhood or change the balance between child, family, and government is a matter for the future.
We are reminded of the human side of the founders of the nation when we read John Adams' letter fretting over whether startling loud sounds cause children to lose their reason. So, it may be useful to remember that Supreme Court justices once themselves were children in diapers; they were not born wearing black robes. Every justice brings his/her childhood experiences to the bench. Justice Stephen Breyer won the title "the Blister King" for his sore feet at summer camp. Ruth Bader Ginsburg, left an only child when her older sister died shortly before she started school, twirled batons and had a family nickname, "Kiki." Clarence Thomas experienced the abandonment of his father, extreme poverty, and the loss of his home to fire, all before he was eight. Chief Justice John Roberts described himself as a "slow-footed linebacker" in high school football. Many justices, too, are parents, aunts or uncles, and grandparents. Justice Antonin Scalia was an only child, but as the father of nine children he infamously purchased a former fraternity house to accommodate his large family while teaching in Chicago. The antics of John Robert's four-year-old son, Jack, during his Senate confirmation were not lost on President George W. Bush, the jaded Washington press corps, or his half-worried dad, the newly sworn in Chief Justice. To be a loving parent, aunt or uncle, or grandparent is a humanizing--and often humbling--experience. The child that was and the family members that they are shape Supreme Court justices' view of the world and the opinions they write, every bit as much as precedent and statutes.
Even if the Supreme Court has a long way to go with young people, they have come a long way. Vague as it is, the United States Constitution includes one express duty regarding children--and in taking the oath of office, each justice sitting on the bench of the Supreme Court has sworn they will endeavor "to secure the Blessings of Liberty to ourselves and our Posterity." As with the preamble, that duty is an ending, and a beginning.