Developing Constitutional Rights of, in, and for Children

Abstract

The Supreme Court has in recent years decided many cases challenging state substitute-parenting activities. The increasing number of such cases on the recent Supreme Court docket is itself a striking fact, most likely reflecting the Court's perception of widespread concern about family structure in the society. Taken together, these decisions appear to vest constitutional rights in both parents and children against state interventions and increasingly to curtail state authority to intervene against parental wishes on behalf of children. But the Court has not yet formulated a coherent rationale for this stance, nor has it acknowledged that its application of constitutional norms in these cases yields some generalizations about the permissible scope of state substitute-parenting activities. This discussion will address that task. It will not consider state interventions to control juveniles who commit overtly antisocial acts. In principle, the justifications for such state interventions are clear. In practice, the obstacles to successful interventions seem the same as for adult corrections. Instead, the focus will be on state efforts exclusively intended (in the catchphrase) to help troubled children rather than to punish children in trouble.