Why Children Should Have Constitutional Rights of Their Own

Although children’s rights have in recent years moved from the fringes to the mainstream in international law, there is not yet a consensus on how children’s rights should be treated at the level of national constitutional law. Most countries have general constitutional provisions that apply to adults and children alike, and the right to education features in a majority of national constitutions. But more detailed and dedicated provisions on children’s rights are less common, and there is much variation in how detailed those provisions are, and in how strongly they protect children’s rights. This article argues that any national constitution that makes provision for constitutional rights that are enforceable through judicial review should include among those rights a dedicated provision that protects children’s rights. The inclusion of such provisions serves to legitimize children’s rights by placing them on a similar level to other rights; it elevates children’s rights to the highest point of the legal system, so that they enjoy entrenchment and supremacy over laws or policies conflicting with them; and it counter-balances other constitutionally recognized rights or interests that might be asserted in a manner that would undermine children’s rights. Objections to dedicated constitutional rights for children (including objections to constitutional rights per se; to children’s rights per se; and to “special rights” for children) are examined and rejected as unpersuasive.