Not thinking so much about emergency situations, a la temporary curfews post-natural disaster… more about a standing law in a metropolitan area saying kids under a certain age can’t be on the streets certain hours.
Seems to go against the whole right to peaceably assemble thing. Granted, the 1st Amendment specifically says Congress won’t infringe on the right, but I know subsequent decisions and amendments have extended that to no arm of gov’t can infringe upon a right.
I guess the larger question would be — how have we defined what is and isn’t kosher for legislating minors? Any truancy law seems a bit dodgy… of course minors by definition can’t vote… but that doesn’t mean they’re not US citizens and subject to the rights and protections therein?
Here’s a whole law review article on the subject.
If I were on the SCOTUS, I think I’d be troubled by the constitutionality of such laws. I usually err on the side of freedom over government power.
Right, it doesn’t mean that, and the fact that they can’t vote isn’t a cause of the different treatment under the law, but another effect of it. The fact of the matter is, kids are different from adults. One way that they’re different, and which always comes up in curfew cases, is that they’re always under some form of custody. You can’t very well say that a curfew for kids is unconstitutional because US citizens have the right to go where they please, because we are constantly telling kids where they have to go and what they have to do, ostensibly for their own good.
It’s that last part – the notion of parens patriae – that allows for different definitions of what’s kosher and what isn’t. We technically evaluate the constitutionality of a given law the same (super-complicated) way whether it concerns minors or adults. What changes are the value of the right at stake (or maybe even the question of whether the kid has any right at all, in that kids by definition have less of a right to be free from compulsion, because, like, sometimes they die if they aren’t compelled in certain ways) and then additionally, the importance of the public interest that the law is supposed to be protecting. To be very simplistic about it, what we say is that kids may or may not have the right to be left alone, depending on the context, but they have less of a right than adults do; and that the government has much more of a legitimate interest in keeping kids, who are more vulnerable and less likely to know any better, off of the streets than keeping adults off the streets. You take those things and you balance it out and you say, OK, does this law seem to be treading too heavily or not? As that law review article shows, you can end up with a lot of different answers to that question and a lot of different approaches depending on the case, but I think in general what it all amounts to is that there’s no categorical rule that says children don’t have rights; there are just more and stronger reasons to restrict the liberty of children than adults.