Catherine Smith Publishes Article in the Duke Journal of Constitutional Law & Public Policy The article argues that in analyzing children’s equal protection claims, courts engage in a series of analytical traps in reliance on an adult rights-bearing archetype, stifling young people’s rights.

By Law Communications
February 24, 2025

Catherine Smith, Vincent L. Bradford Professor of Law at Washington and Lee University, has published “The Adult Rights-Bearing Archetype and How It Stifles Young People’s Equal Protection” in the Duke Journal of Constitutional Law & Public Policy.

Professor Smith argues that while the U.S. Supreme Court has recognized children as constitutional persons and proclaimed that neither the Fourteenth Amendment nor the Bill of Rights is for adults alone, the courts “mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers.” Her article reveals six adult-rights-bearing analytical traps that limit children’s equal protection and proposes jettisoning the Carolene Products test in favor of a youth-based framework.

Smith concludes the paper by arguing that “[i]nstead of shoehorning children’s rights into” a web of laws designed for adults,  “discrimination against children merits a framework on its own terms.” In that vein, she introduces three youth-based paths to heightened scrutiny when laws: (1) use children as a means to create or maintain a caste system; (2) punish children for matters over which they have no control; or (3) erect an insurmountable barrier to children’s ability in the political process to remedy large-scale catastrophic harm inflicted upon them, such as the disproportionate injuries to young people from the climate crisis and gun violence.”

The article was written as the anchor for the symposium titled “Children’s Equality Law: Engaging the Work of Professor Catherine Smith,” which was hosted by the Duke Journal of Constitutional Law & Public Policy in 2024.

The article is available online at the W&L Scholarly Commons.

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