Instituting Children’s Full Political Participation and Representation in the 21st Century United States

Instituting Children’s Full Political Participation and

Representation in the 21^st Century United States

Warren Binford*

Originally published in November 2022.

As we approach the 100^th anniversary of children’s rights in 2024,[1] it is easy to marvel at the apparent strides that have been made this past century in recognizing children as their own persons nearly fully endowed with all the same human rights as adults, as well as additional rights based on their unique status as children. Many of these rights are exercised based upon an individual child’s “evolving capacity,”[2] which, unfortunately, has been used to disenfranchise en masse approximately one third of the world’s population from exercising their full political power based not on an individual child’s capacity to exercise her enfranchisement rights, but rather simple chronological age.

The Right to Vote in the United States

The most obvious example of the disenfranchisement of children’s political power as an act of blatant age discrimination is the near universal denial of children’s right to vote.[3] Take the United States, for example. Founded as a federal democratic republic in 1776, Article 1 of the country’s second constitution, which was adopted in 1789, gave states the right to control elections.[4] This resulted in the right to vote being given to only six percent of the U.S. population (primarily land-owning white males).[5] Suffrage was not extended to Black men, women, and Native Americans until, respectively, the ratification of the 15th Amendment in 1870,[6] the ratification of the 19th Amendment in 1920,[7] and the passage of the Indian Citizenship Act of 1924.[8] Sadly, although the latter recognized the right of Native Americans to U.S. citizenship, it took another forty years before all fifty states recognized their right to vote.[9] Shortly after Native Americans finally received nationwide suffrage, eighteen to twenty-year-olds were also given the right to vote in 1970 with the passage of the 26th Amendment.[10]

What demographic group is still denied the right to vote half a century later in the United States? Children. Children comprised 22.1 percent of the U.S. population in 2020[11] and yet just 7.4 percent of the federal budget was allocated for their needs.[12] By contrast, seniors received nearly 40 percent[13] of the federal budget even though they comprise just 16.9 percent of the U.S. population that same year.[14]

What explains this remarkable gap between spending on seniors versus children? Political enfranchisement. Seniors are fully endowed with the right to vote and enjoy robust representation in Washington, D.C., both with elected individuals, executive agencies, a Cabinet position, and, of course, lobbyists.[15] Children deserve the same.

Children’s Lesser “Becomings” Status Under International Human Rights Framework

Equality is a foundational principle to the human rights framework.[16] As fully human beings, children should enjoy all the rights inherent to being human with additional rights and protections due to their unique status as children. When the League of Nations first created the children’s rights framework with the 1924 Geneva Declaration, children were viewed largely as objects—to be protected, assisted, and nurtured into responsible adulthood. Indeed, its preamble declared that “mankind owes to the Child the best that it has to give.”[17] When the 1959 United Nations Declaration was adopted twenty-five years later, children were portrayed not as objects, but as subjects—capable of acting, forming their opinions, and possessing their own individuality.[18]

The portrayal of children as subjects was further developed in 1989, when the United Nations Convention on the Rights of the Child was introduced to the General Assembly. The world’s first children’s rights treaty went on to become the most widely ratified human rights treaty in the world.[19] Indeed, every recognized nation has ratified it except the United States.[20] Nonetheless, the United States has signed the treaty.[21] Additionally, the United States submitted more content to the treaty and made more revisions to the content submitted by other countries than any other drafting country,[22] which suggests that the United States was heavily invested in the tenets of the treaty (and, arguably, has at least a moral duty to uphold the Convention).

One of the main tenets of human rights as embodied in the Convention on the Rights of the Child is that they should be exercised within the child’s “evolving capacity.”[23] It is this framing of children’s capacity as evolving that has been used to disenfranchise children in the United States and elsewhere and has legitimized widespread age discrimination. Michael Freeman criticizes the concept as allowing us to view children not as human “beings,” but as “becomings”[24] who are less than fully human. In other words, because children are not adults, they are not entitled to equality, including full political participation, within the human rights framework.

Such an arrangement might be acceptable if humanity truly gave children “the best that it has to give,”[25] as was promised 100 years ago when children were still being treated as objects, but with the climate crisis bearing fully upon us, child abuse and exploitation visible worldwide, child poverty entrenched in both the North and the South, inadequate educational opportunities around the globe, and many other ills disproportionally affecting children, one has to wonder if, on balance, being a disenfranchised subject is worse than being a well-cared-for object.

But this is not the dichotomous choice we are faced with. As witnessed both in the United States vis-à-vis voting rights and in the international community vis-à-vis human rights, rights evolve, and children’s rights are necessarily destined to evolve as well. For example, the Convention on the Rights of the Child recognized that children have “participation rights” in Article 12, et seq. Indeed, the United States proposed Article 13, which articulated children’s rights to freedom of expression, a foundational principle of democracy in the United States, which has been recognized by the United States Supreme Court as being held by children (once again, subject to limitations).[26] And of course, the Convention recognizes the rights of children to freedom of thought, conscience, religion, assembly, and more.[27]

What does the Convention not recognize? Children’s rights to direct political participation. Take Article 12(2), for example. While it recognizes the child’s right “to be heard in any judicial and administrative hearing affecting the child,” it does not recognize a similar right to participate in legislative hearings affecting the child.[28] Our failure to recognize children’s political rights has relegated them to a powerless childhood without security and a future without promise. Maybe this is why children feel so anxious and depressed these days[29] and youth suicide is so prevalent.[30]

Instituting Children’s Full Political Participation in the 21^st Century United States

The elegant solution to resolving children’s right to full political participation with current systems is to recognize that equal rights do not necessarily require the same treatment. For example, some argue that young children physically could not vote, and that could be used as an argument to deny their right to vote.[31] However, many disabled adults are physically or mentally unable to vote but are given accommodations (including companion assistance) that allow them to overcome this hindrance.[32] So, too, could children. But it isn’t really children’s size or physical abilities that prevents them from being entrusted with the right to vote, is it?

Some say that it is children’s lack of capacity,[33] yet, we don’t test their capacity do we? Indeed, because of the well-documented abuses in testing capacity to vote,[34] we have ended capacity tests in the United States and made enfranchisement nearly universal for citizens—that is, except for children. But is a person any more capable of voting on her 18^th birthday than she was the day prior? Of course not.

Although we argue that a child is incapable of exercising her right to vote, in the United States, we recognize her right to express her political views, volunteer in political campaigns, organize rallies, canvas, and donate her money to politicians.[35] But we will not recognize her right to vote for the same politicians, even if the political issues affect her.

Should a court emancipate a person under eighteen years of age after she proves that she is capable of functioning as an adult, the emancipation order would not entitle her to cast a vote. A person under eighteen years of age can get pregnant, consent to confidential medical care, marry, end her education, work, leave home, support herself, and become a parent, but there are no circumstances in which she can vote, except in those handful of municipalities that have recently allowed sixteen- and seventeen-year-olds to cast votes in local elections.[36]

So let’s stop pretending that denying children the right to vote is anything other than pure and simple age discrimination and instead recognize that children have the right to full political participation, including enfranchisement, and figure out how to facilitate the fulfillment of their full political rights in light of their “evolving capacity.”

We should start by giving every child citizen the right to vote in all elections (local, state, and federal) and both presume and bolster their capacity, by, for example, family-facilitated accommodations and universal, robust age-appropriate civics education at all levels. For example, young children could have their votes cast by their parents or guardians as has been proposed by others for decades.[37] The child’s representatives could be educated to help ensure that they are not just doubling or tripling their own voting in accordance with their own political interests, but should instead, honor their children’s stated interests. If the child is not able to express herself, such as in the instance of an infant, the child’s representative could follow the substituted judgment model of representation used by some children’s attorneys that require the adult to put themselves in the children’s shoes.[38] Alternatively, one could cast the child’s vote in accordance with the child’s best interests standard, which was created in the United States and was fully embedded throughout the Convention on the Rights of the Child.[39] Presumably, by the time the child is an adolescent, they will be able to cast their own vote with minimal assistance from their parents or guardians.

But universal enfranchisement of children is not enough to ensure children’s full political participation in the United States. We also need to create child-centered systems, positions, and institutions that effectively advance children’s interests and facilitate their participation. For example, children’s advocates and ombuds offices have been established in numerous states.[40] The nature and authority of individual state offices vary, but essentially, they are charged with responding to the problems children in their state are experiencing and helping to create solutions to those problems.[41] An independent Children’s Advocate Office should be established at the federal level, charged with creating age-appropriate communication systems, that ensures access for children of all ages nationwide.

Additionally, a Department of Children should be founded with a Children’s Secretary serving in the President’s cabinet. The U.S. Children’s Department will be charged with institutionalizing child impact statements for all legislation, representing children’s interests in all federal deliberations (including the budget), and facilitating child participation in public policy planning and implementation. Effectively, the Children’s Department will help ensure that children are no longer an afterthought in Washington, D.C.

This system—universal suffrage for children, an independent federal Child Advocate’s Office, and an executive branch department focused solely on children’s needs—should be instituted, and then replicated at all levels of the U.S. political system (local, state, and federal), so that children have both representation, as well as points of access to help facilitate their participation so that they can realize their full political rights in accordance with their evolving capacity.

Conclusion

In the same way that children’s rights have been evolving in its first one-hundred years—from framing children as objects in 1924 and then subjects in 1959 and then “becomings” in 1989—it is critical that children’s rights continue to evolve in the next one-hundred years. Children should be viewed and treated as fully human beings, with a right to exercise their full array of both human and political rights, including the right to vote. All age-based discrimination that is not based on individual capacity and is not known to be harmful to the child should end. Instead of defining “evolving capacity” as what the child is capable of on her own measured against adults, a child’s evolving capacity should be viewed within the systems of support available to her as accommodations and in the context of the unique stage of childhood. It is only when children are able to fully exercise their political rights that their needs will start to be addressed by a system that too often has dismissed them as merely children, and as a result, under-resourced them and their future.

*Warren Binford is the W.H. Lea Endowed Chair for Justice in Pediatric Law, Policy & Ethics at the University of Colorado where she is Professor of Pediatrics (tenured) in the School of Medicine, Professor of Law (by courtesy) at CU Law School, a Core faculty member in the Center for Bioethics and the Humanities, and Director of Pediatric Law, Policy & Ethics at the Kempe Center for the Prevention and Treatment of Child Abuse and Neglect.

[1] Geneva Declaration of the Rights of the Child, Sept. 26, 1924, League of Nations, O.J. Spec. Supp. 21 at 43 (“1924 Geneva Declaration”). The United States was not a member of the League of Nations. However, the 1924 Geneva Declaration laid the foundation for the United Nations Declaration of the Rights of the Child, G.A. Res. 1386 (XIV), GAOR 14^th Sess., Supp. No. 16, U.N. Doc. A/4249 (Nov. 20, 1959) (“1959 U.N. Declaration”), as well as the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (“UNCRC”).

[2] Id. at arts. 5 and 14(2).

[3] Certain governments do allow persons under 18 years of age to vote including Austria and certain areas in Germany, Switzerland, and the Isle of Man, for example. Also, some U.S. states allow 17-year-olds to vote in a primary if they will be 18 years of age by the next general election. Sonja C. Grover, Chapter 8 Unconstitutional Age-Based Discrimination in the Vote Applied on Account of Young Age, 6 IUS Gentium 167, 196 (2011). Additionally, several municipalities in the U.S. have lowered the voting age to 16. Katharine Silbaugh, Developmental Justice and the Voting Age, 47 Fordham Urb. L.J. 253, 256 (2020).

[4] U.S. Const. art. I.

[5] Archive of The Charters of Freedom: A New World is at Hand, Archives.gov, https://web.archive.org/web/20160706144856/http://www.archives.gov/exhibits/charters/charters_of_freedom_13.html (last visited Oct. 18, 2022).

[6] U.S. Const. amend. XV.

[7] U.S. Const. amend. XIX.

[8] Indian Citizenship Act of 1924, Public Law 68-175, 43 STAT 253 (1970).

[9] Voting Rights for Native Americans, Libr. of Cong., https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-native-americans/ [https://perma.cc/JWW3-5E3V] (last visited Oct. 18, 2022).

[10] U.S. Const. amend. XXVI.

[11] Share of Child Population in Total U.S. Population 1950 to 2020, Statista https://www.statista.com/statistics/457796/share-of-child-population-in-the-total-us-population/ [https://perma.cc/5T7Y-JTWS] (last visited Oct. 18, 2022).

[12] Heather Hahn, et al., Kids’ Share 2021: Report on Federal Expenditures on Children through 2020 and Future Projections 1, 3, 32-33 (Urban Institute 2021.

[13] Howard Gleckman, The Federal Budget Will Spend Half Its Budget on Older Adults in Ten Years, Forbes, Feb. 1, 2019.

[14] Share of Old Age Population (65 Years and Older) in Total U.S. Population from 1950 to 2050), Statista https://www.statista.com/statistics/457822/share-of-old-age-population-in-the-total-us-population/#:~:text=In%202020%2C%20about%2016.9%20percent,reach%2022%20percent%20by%202050 [https://perma.cc/N78J-NADL] (last visited Oct. 18, 2022).

[15] Previously, seniors also were trapped in a state of poverty. However, social programs were created after the Depression to help provide for children and seniors. When those same programs later came under attack, seniors were able to unleash their political power to defend their programs targeting them, whereas children’s programs were decimated despite the fact that children comprise a larger share of the population]. Jane Rutherford, One Child, One Vote: Proxies for Parents, 82 Minn. L. Rev. 1463, 1465 (1998).

[16] GA Res 217A (III), Universal Declaration of Human Rights, UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, art. 7.

[17] 1924 Geneva Declaration, supra note 1.

[18] 1959 U.N. Declaration, supra note 1.

[19] Congressional Research Service, The United Nations Convention on the Rights of the Child 1 (Updated July 27, 2015).

[20] Convention on the Rights of the Child Ratification Status, U.N. Treaty Collection Database, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en [https://perma.cc/37GN-L78S ] (last visited Oct. 18, 2022).

[21] Id. The Vienna Convention on the Law of Treaties mandates that a treaty signatory shall not defeat the treaty’s purpose. Vienna Convention on the Law of Treaties, Article 18, 1155 UMTS 331 (1969). Unfortunately, the United States has also signed, but failed to ratify the Vienna Convention. However, many of the provisions of the Vienna Convention have been recognized as customary international law by the U.S. Department of State. M. Frankowski, The Vienna Convention on the Law of Treaties before United States Courts, 28 Virginia Journal of International Law 281, 307 (1988).

[22] See generally Office of the United Nations High Commissioner for Human Rights, The Legislative History of the Convention on the Rights of the Child (2007); Cynthia P. Cohen, Role of the United States in Drafting the Convention on the Rights of the Child: Creating a New World for Children, 4 Loy. Poverty L.J. 38 (1998). The United States participated in drafting or proposing language to thirty-eighty of the Convention’s forty substantive articles, including Article 13 on freedom of expression.

[23] UNCRC, supra note 1, arts. 5 and 14(2).

[24] Michael Freeman, A Magna Carta for Children? Rethinking Children’s Rights, passim (2020).

[25] 1924 Geneva Decl., supra note 1, Preamble.

[26] See generally Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) and Mahoney Area School Dist. V. B.L., 141 S. Ct. 2038 (2021).

[27] U.N. Convention, supra note 1, arts. 14 and 15.

[28] Id., at art. 12(1).

[29] Lydie A. Lebrun-Harris, et al. Five-Year Trends in Children’s Health and Well-Being 2016-2020, JAMA Pediatrics (March 14, 2022).

[30] Sandy Cohen, Suicide Rate is Highest Among Teens and Young Adults, UCLA Health (March 15, 2022), available at https://connect.uclahealth.org/2022/03/15/suicide-rate-highest-among-teens-and-young-adults/#:~:text=Suicide%20is%20the%20second%2Dleading,National%20Alliance%20on%20Mental%20Illness [https://perma.cc/5AT8-VR2W] (last visited Oct. 18, 2022).

[31] Freeman, supra note 24 at 309 et seq.

[32] Jennifer A. Okwerekwu, et al., Voting by People with Mental Illness, 46(4) The Journal of the American Academy of Psychiatry and the Law 1 (2018).

[33] Nico Brando, Is Child Disenfranchisement Justified, Critical Rev. Int’l Soc. & Pol. Philosoph. 1, 4 (2022).

[34] Thus, the practice was banned by the 1965 Voting Rights Act and upheld by the U.S. Supreme Court in Oregon v. Mitchell, 400 U.S. 112 (1970).

[35] See generally id. and Grover, supra note 3.

[36] Joshua Douglas, The Case for the 16-Year-Old Vote, Washington Monthly (Aug. 25, 2022). Some colonies in early America also allowed 16- and 17-year-old males to vote so arguably youth voting is part of our national political tradition. Wendell W. Cultice, Youth’s Battle for the Ballot: A History of Voting Age in America 3 (1992).

[37] See, e.g., Rutherford, supra note 15.

[38] Andrea Khory, ABA Adopts Model Act on Child Representation, American Bar Association (Sept. 1, 2011), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol30/september_2011/aba_adopts_modelactonchildrepresentation/#:~:text=Substituted%20judgment%20means%20the%20lawyer,making%20an%20adequately%20considered%20decision [https://perma.cc/JEP7-4S3N] (last visited Oct. 18, 2022).

[39] Cf. Erica Salter, Deciding for a Child: A Comprehensive Analysis of the Best Interests Standard, 33(3) Theoretical Medicine and Bioethics 139 (April 2012).

[40] National Conference of State Legislatures, Children’s Ombudsman Offices/Office of the Child Advocate, https://www.ncsl.org/research/human-services/childrens-ombudsman-offices.aspx (last visited Oct. 18, 2022).

[41] Id.