just asking questions

Should Children Vote, Sit on Juries, and Serve in Office?

A law professor’s radical case for rethinking American democracy.

Photo: Ted S Warren/AP/Shutterstock
Photo: Ted S Warren/AP/Shutterstock

When I reach Adam Benforado on the phone, he’s agonizing over whether his 9-year-old will make it through her sleepover without having to call home in the middle of the night. He immediately connects this feeling to our collective parenting mood three years post–school shutdown: “We feel like we need to sort of maximize the welfare of our children and make up for this horrible thing that happened to them, and all the isolation.”  

Benforado isn’t just a beleaguered father; he’s a legal scholar of children’s rights at Drexel University and the author of a new book, A Minor Revolution, that offers a bracing, encyclopedically researched, surprisingly hopeful take on how we could get ourselves a better country by enshrining children’s rights in the law. All we’d have to do is change who gets to vote, how legal proceedings work, and how we interpret statutes and regulations all the way up to the Constitution. Quixotic? Maybe, but the prize would be a better society for everyone, he says, and a clearer focus on tackling issues like poverty, climate change, and the woeful state of education.

Of course this is my beat, since I published a book, The Stolen Year, about children in the pandemic, but lately it really seems there’s been a barrage of terrible news about kids. There’s the shocking rebound of child labor, the quarter-million kids who are apparently missing from school buildings entirely, the teen mental-health crisis, as well as the anemic response to getting children affected by the pandemic and school closures the learning help they actually need. How could child rights address all this? 
Well, there are a lot of folks who work in the sphere of children’s welfare who choose different ways to frame the pathway forward to prioritizing kids. I adopt a rights perspective because I think in America, rights are particularly persuasive, particularly powerful.

We’re probably most familiar with children’s rights in an area like child labor, and you write about the “child-savers” from a century ago. Why is this rollback happening now? 
Unfortunately, we haven’t made the progress that seemed inevitable 100 years ago. The way we have continued to run our country turns a blind eye to the plight of the most vulnerable children in the interest of economic efficiency. And we see recent attempts to roll back some of these protections exactly in those terms — that we have labor shortages because of the pandemic, so we need kids to work.

And that’s because there is no free option when it comes to social problems — you either pay early on prevention or you pay late on rehabilitation or remediation. Either focus on preschools and good prenatal health care or triple bypasses and prisons.

This is very galvanizing! And it kind of leads into my next question. In the case of protecting a child from gun violence, which is spiking, it’s easy to decide what a child’s best interest is. But don’t we also have this additional issue, which is how you determine what is in a child’s best interests when they can’t always participate in society or in civic engagement in the way that adults can? 
That’s why I’m a very strong advocate for lowering the voting age, allowing young people to serve on juries, to run for office and serve in many roles that allow them formal power in our public life. We need to actually hear from young people about what’s important to them. And when we deny their voice we imperil ourselves.

Young people actually do have valuable ideas and perspectives on the world. What do you think the most pressing matters in society are? Well, climate change, gun violence, trans rights, how to regulate social media. Teens know so much about those things and are so concerned about those things. We see them at the forefront of the Parkland movement, the Black Lives Matter movement, the climate-change movement.

Do you really want children to vote, though? How young are we talking? The standard pushback that I get on something like lowering the voting age is that kids just don’t have the capacity. That’s belied by the data we have from psychology and social science. That when it comes to voting-relevant cognition, the average 16-year-old and the average adult really are indistinguishable. And we allow adults who have very significant cognitive impairments to vote.

You started out with a very arresting image, which is these horrible stories of these little children in immigration court. And that’s sort of like a travesty of rights. How concretely should we, in a developmentally appropriate way, involve children in things like legal proceedings?
Envisioning change can be difficult. We likely need to rebuild structures from the ground up with children’s interests in the forefront and get rid of some of the formalism. We have created a legal system that regular adults find impenetrable. It’s conducted in a foreign language and requires levels of expertise and money that make access to justice impossible for many. So if we say, “What if we rebuilt this system to allow kids to actually have a real say?” I think it would have tremendous benefits for adults as well.

Yeah. I see what you mean.
I think kids should not be kept to the side when we’re deciding something even in criminal proceedings. The interests of the defendants’ children should be front and center. When we lock up a single mother we are setting up an intergenerational cycle of harm. We need a radical rethink of the entire system. We need to come up with a new mechanism.

I do want to talk about how adopting a child-first perspective could end up being politicized because that has happened throughout our history. Everybody loves to use children as their watchword. And can I get you to speak specifically to the noise that is being made over kids that are transitioning?  
Well, there’s an important difference between actually arguing for children’s rights as children’s rights and using children’s rights as a means to advance your own ideological preferences and priorities, and unfortunately we’ve had this long history of doing that.
Often a conversation about children’s rights ends up shifting to a conversation about other people’s rights.

With respect to this battle over the treatment of trans kids, there are many things that are really upsetting and disturbing about it. The conversations about risks to children often aren’t based on data but irrational beliefs and perceptions.
I want us to think about, How does this impact kids, and what do kids think? Whether it’s about book banning or trans rights — how do they feel? What books do they want to read? How do they feel if they can’t learn something? How do they feel about having someone on their swim team who is trans? When we listen to kids, we may learn things that are troubling to us, but I really think that they deserve to be a part of the conversation, and when they are, the path forward will be much clearer for all of us.

To me, the issue of children’s rights really points up to the hollowness of American individualism because, I think, in the conservative point of view, if you’re not upholding the parents’ rights, then you are upholding the state. Because who is going to stand for the child other than various state apparatuses when the parents and children’s interests are determined to be at odds?   
My answer is that I want to hear from kids. When you talk about who the decider should be on anything, kids are capable of understanding a lot more than we often give them credit for. They have standing, and they’re frequently ignored.

I teach a course called the Rights of Children, and each year I ask my law students in this course to reflect on a moment in their childhood when they felt like their rights weren’t respected. And every year I have kids who talk about divorce and separation procedures where their interests, beliefs, experiences were put to the side. The judge never considered them, or gave them lip service. So a kid who was 13, who is now 26 years old, who is still worked up about the fact that he was sent to be with his father but it was the wrong decision — his views were never taken into consideration.

I think we can all relate to that feeling of being unheard. 
So if I could sum up what you’re saying, it’s that in the interests of children, you’re calling for changes not only to our policies but to our legal systems, and those changes would be great for people in general and basically our democracy as a whole. And if it’s a big change, yes, it’s a big change. It’s radical. And that’s what we need. 
Yeah. When we have a big problem, we need to change. And I feel incredibly optimistic about things like the teens I talked to writing this book. And when I look around and particularly at youth activism, I mean, it’s so exciting. It’s just so cool to think about if these kids actually have real power in this world, what we could change, what we could accomplish.  
This story has been edited for clarity and length.

Should Children Vote, Sit on Juries, and Serve in Office?