This Article focuses on one doctrinal question, which has not yet been examined by the Supreme Court of the United States: the appropriate review standard for discriminations against children (children qua children) under the Equal Protection Clause. This Article extensively argues, by applying the traditional three-factor criteria (visible and immutable/irreversible trait, limited access to politics, and existence of prejudice), that we should treat children as a suspect or quasi-suspect class and that we should apply heighted scrutiny for children–adults classifications. It also refutes erroneous arguments commonly seen in the courts that have justified the application of rational basis review for children—the argument to lump the elderly and children together as age discriminations and the argument to consider childhood as a temporal stage of life. This Article particularly highlights that people’s cognitive structures are different between discriminations against the elderly and children. The constitutional argument in this Article has a potential to develop a new critical framework for the jurisprudence on children and the law—the “childist legal studies.”
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Equal Protection for Children: Toward the Childist Legal Studies,
N.M. L. Rev.
Available at: https://digitalrepository.unm.edu/nmlr/vol50/iss2/4