Life was bleak for children of working-class families before the "child savers" movement of the early 1900s that gave us child labor laws, among other reforms. But even though most kids today are not worked to the bone, life for many American children is similarly bleak, as scholar Adam Benforado reflects.
"A hundred years on, children still go hungry," Benforado, a Drexel University law professor, writes in his new book on the topic, "A Minor Revolution." He continues: "Children still end up on the street when their families can't make rent. Not a handful of children — millions." They experience lead poisoning, toxic metals in baby food, death trap bassinets, and vaping. "Among the twenty richest countries in the world, America is dead last on childhood mortality," Benforado says: "Car crashes and firearm injuries persist as the leading causes of child fatalities because we've vigorously blocked gun and vehicle safety laws that our peers passed years ago." He argues, "We know so much more about what is good and bad for young people, but we do so much less about it." Why? Because we prioritize other principles, like parents' rights and corporate profit, over child welfare.
I first met Benforado when he and I worked for judges on the same court. He was an unabashed critic then and stayed that way, dedicating his first book, "Unfair: The New Science of Criminal Injustice," to questioning the way we as a nation define criminal behavior and then police, convict, and sentence it. "A Minor Revolution" is arguably even more ambitious. In it, Benforado sets out a breadcrumb trail of facts and anecdotes leading his reader to indict everything from the foster system to military recruiting to self-financed higher education. His unifying argument is anti-inertial: We don't have to do things the way we've always done them; we can change the rules to put kids first in a way that will benefit us all.
That starts by being honest with ourselves about some discomfiting contradictions in the status quo. "We've somehow ended up with a justice system that treats kids as adults when it comes to policing and punishment but not when it comes to basic rights," he writes, noting that each year 76,000 children who aren't allowed to watch R-rated movies are prosecuted as adults. In some states, they're deemed fully responsible for rash choices made under peer pressure but not responsible enough to sell a bike or go to the dentist alone. These rules aren't just wildly inconsistent; they're also backwards, according to science. Studies show that a teen's "capacity to understand and reason her way to a decision is comparable to an adult's ability in situations that allow for coolheaded deliberation," Benforado explains. In other words, research on the adolescent brain says "yes" to letting them vote and "no" to prison.
"We need to notice children, notice the suffering of children, and rethink our approach to law, to business, to every field."
Benforado knows his recommendations — which include changing the way we tax investment income and inheritance, allowing youth to serve on juries, and much more — will be met with dismissal and defense: "[S]econd-class citizenship always seems natural, obvious, and justified to the privileged," he writes, drawing parallels between kids today and women in the 1800s. That comparison seemed fair to me, but also ludicrous. So I gave him a call to better wrap my head around these big arguments for recognizing little people. Our exchange has been edited for length and clarity.
You start and end the book with tales of kids with incarcerated parents, even arguing for considering whether a person has dependent children in criminal sentencing. Why do you keep coming back to these families?
For this book, I really wanted to have conversations. Some of the most powerful moments, the ones where I just felt overcome with emotion, were talking to people whose parents had been locked up when they were kids. They drove home what is at stake when we talk about children's rights. The plight of these children is also a particularly powerful example of one of the book's core themes: Most harm to kids really doesn't come from the intentional actions of bad people; it comes from our failure to consider them at all as we build products and infrastructure, as we create laws. We built this system of mass incarceration without a thought for what it would do to the millions — and it really is millions over the last several decades — of kids whose parents end up taken away from them.
"It was just devastating to be speaking to a grandmother who was incarcerated when her girls were little, hearing about what they went through and how it resulted in drug abuse and their own trouble with the law, and then learning that her grandson is now in foster care."
We need to notice children, notice the suffering of children, and rethink our approach to law, to business, to every field. When I first became a law professor, I taught business organizations, and whenever I'd bring up the possibility of holding a corporation criminally liable — instead of just the officers running it — my students' reaction would be, "Well, that wouldn't be fair to innocent shareholders." And I'd say, "But what about the kids of all the people we lock up?" And the response I'd get is, "Huh, yeah, I didn't think about that." And I think if we stop to notice the impact of our processes, we have this incredible chance to rebuild society.
And your argument is that this "child-first" reimagining would move, say, the criminal justice system toward prevention and rehabilitation, which should be its overall goals anyway, right?
That's exactly right, and it makes this book a different type of rights book. I say we shouldn't prioritize the interests of children simply because it's the right thing morally to do; it would also allow us to be the society we all want to live in. And that's because the most pressing societal issues are best addressed in childhood. If we want to deal with crime or public health or underemployment, childhood is our highest-impact intervention window. One of the most upsetting truths that came out of the interviews I did for the book was the intergenerational trauma that comes from locking up the parent of a young kid. It was just devastating to be speaking to a grandmother who was incarcerated when her girls were little, hearing about what they went through and how it resulted in drug abuse and their own trouble with the law, and then learning that her grandson is now in foster care, having mental health problems, already teed up for the criminal justice system.
So part of your argument is that children are a bit of a canary in the coalmine, and what's hurting them eventually hurts us all. But a separate thread says children aren't mini-adults. What does research say about how kids are different, and why should we have different rules for them?
Well, take the fact that young people are three times more likely than adults to confess to crimes they didn't commit. The standard approach to interrogating someone in the U.S. is you bring them down to the station, you kind of assess whether they're lying to you, and if the detectives sense they are, the police go into a manipulative attempt to get a confession that involves both maximization, with threats that very bad things are going to happen unless you confess, and minimization, the idea of "It's not a big deal … just say you did it, and everything will be okay." And the data suggests that young people are especially vulnerable to these techniques. And because confessions are considered such a weighty type of evidence, false confessions produce wrongful convictions.
And this is true even when they've been read their Miranda rights?
Two-thirds of kids don't understand all of their Miranda rights. Even when they do, young people are particularly likely to waive them, in part because they tend to be more trusting of authority. They also exhibit what's referred to as "the illusion of transparency," meaning they think what's obvious to them is obvious to other people.
Like police officers or a judge.
Yeah, so they may think to themselves, "I know I didn't commit this murder, but I'm experiencing acute distress in this windowless room with these two cops screaming at me. This is horrible. I want to go home. If I just say back exactly what they're telling me happened, they'll go and interview other people and collect evidence and realize I'm innocent." What they don't know is that after you confess, the police stop looking for anyone else. And this isn't research that's just come out in the last six months; it's stuff people have been studying for four decades. Have you watched "Making a Murderer"?
No.
Well, there's this powerful scene where they have this interrogation of a kid at school. And the police are pressuring and pressuring him, and he basically says, "Okay, yes, I did it," after these very leading questions, and then he says, "I have a project due, can I go back to class now?" And that's how their thinking goes. It's like, oh my God, what?
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I see that tying into the research you cite on adolescent brains focusing more on immediate rewards than long term consequences. Another bit of social science you surface is that they'll do almost anything to avoid disappointing a peer. I just interviewed someone who was prosecuted under the felony murder rule, so he hadn't pulled the trigger but was treated as if he had. He was offered a plea deal which was bad for him but good for the loved one who'd fired the weapon. That guy, to his credit, said, "It's okay if you want to go to trial." But sitting there as a 14-year-old, the man I interviewed said, "I seen the sadness in his eyes." That was his calculus: He took the deal, at least in part, to make his peer feel better.
Yeah, we see peer effects in a whole range of areas. It's not simply that young people are risk-taking in all situations. When it comes to raising their hand in class, for example, they can be quite risk-averse. But they do tend to take more risks, and when peers are present that tendency is amplified.
So what should the new rules be? Should the police not be allowed to lie to kids the way they can lie to adults? Should a therapist or licensed clinical social worker have to be in the room for these interrogations?
This is a great example of the coal mine thing. Illinois is at the forefront of banning lying to juvenile suspects. All states should do it. But they shouldn't stop there. They should ban all lying by the police. That's just been shown to create horrible injustices in our system. Focus on kids, fix it, and then our next step is fixing it for the population at large.
Let's switch gears and talk about parents' rights. Two quotes on that topic jumped out at me. You say, "In America, our old cars are scrutinized far more than our young homeschoolers," and then, "The education of children is not a private matter." What's the legal history of how parents got so much control over what their children learn and are exposed to?
Sometimes it can feel like the argument over parents' rights is this entirely new thing. Like we go onto CNN, and there's a story about parents' rights. But it's not. If you go back to the 1920s, there were some foundational Supreme Court cases — Meyer, Pierce — announcing the fundamental liberty interest of parents in the upbringing and education of their kids. The Court said in Pierce, if it is your kid, you have a right to "direct his destiny." In these twentieth-century parenting cases, the Court was focused narrowly on parents choosing a school or deciding whether children spend time with their grandparents or whatever. But now it's kind of seeped into our culture as a larger parents-first mindset. Our starting point today, when we're talking about kids, is "Well, the parents …."
With all we know about gun violence and its impact on today's children, we can't interpret the Second Amendment by asking, "Well, what did people living in a time of cartouche boxes and muskets think these words meant?"
It's interesting reading your book in a post-Dobbs era. As you know, I write a lot about education and whenever people ask me what one thing would I do to advance equity, I say I'd reverse Pierce, which said parents can choose private school rather than all kids going to public school. My thinking is that if everybody's kids were in the same boat, privileged parents would force a rising tide to lift it. But that plan has always had a dismal chance of working, because the legal system has for so long respected precedent. You could chip away at the edges of an old case like Pierce or carve out an exception, but settled precedent was settled. Dobbs is horribly unsettling. When it came to a woman's right to choose, the Court basically said, "Nope, we changed our mind." So maybe that means we can question those parents-first rulings too?
I think that's exactly right. And we should also talk about how the Court interprets the Constitution. We have long been told by conservative legal scholars that originalism …
Hold on one sec. For non-lawyers to catch up, the two opposing schools of thought have been "originalism," which basically means asking what the language meant to the people who created it at the time it was written, and then the idea of a "living Constitution," where we think about the principles and the underlying values those folks were going for, and construe their words in light of our times.
Right. And we are now in a moment, as a result of the conservative takeover of the Supreme Court and to a lesser extent the whole judiciary, where conservatives are actually admitting that originalism was a fraud from the outset. They're saying, it was a useful tool to constrain libs when we were in the minority, but we won and we should now just follow conservative principles. And this is maddening for a lot of progressives, who are like, "But you went to these conferences and told us over and over that originalism was the only legitimate way to interpret the Constitution, and now you're just throwing it out the window?" And I want to say, "Yeah, toss it out."
And go with a living Constitution instead?
I think the best path forward for ensuring that all children have access to books and medical care is to focus on children's rights, not to try to forge some progressive parents' rights movement to combat the conservative parents' rights movement.
Yeah, a child-first approach to interpreting the Constitution is a version of the living Constitution, and I think one that has more substantive bite. With all we know about gun violence and its impact on today's children, we can't interpret the Second Amendment by asking, "Well, what did people living in a time of cartouche boxes and muskets think these words meant?" I want to think about "What ought this to mean in light of the lived experiences of children today?" That has a lot more substantive legitimacy than originalism ever had, in part because it's forward-looking. A child-first mode of interpretation also makes sense because it steers the judiciary back to what it's supposed to be: a countermajoritarian force. Young people cannot vote, cannot hold office. They are the voiceless that the Court has a special responsibility to speak for. And then if we're gonna use this mode of Constitutional interpretation or statutory interpretation after the fact, what if we also take a child-first perspective on the front end?
And this would be like requiring child impact statements the way we already require environmental impact statements?
Exactly, and that is a component of lawmaking in other parts of the world. It's similar to some states, New Jersey for example, trying to utilize racial impact statements. This is a way to get lawmakers thinking about children on the front end. Tennessee has tried for it.
I want to come back to kids not being able to vote, but before we leave the topic of parents' rights, I see a pretty glaring difference between your message and that of others who argue for similar reforms (like federal childcare). New York Times opinion columnist Jessica Grose recently said: "If … it works for you and your family, it's none of my business. Just leave me out of it. The second you're trying to ban books so MY children can't read them, either, or prevent my children from getting any kind of proper education, then we have a problem." This is kind of like a principle in the law known as, "Your right to swing your arms ends just where the other man's nose begins." But you draw the line in a fundamentally different place.
I think that's a really right-on observation. As a parent, I certainly share Grose's frustration and anger. But I think the best path forward for ensuring that all children have access to books and medical care is to focus on children's rights, not to try to forge some progressive parents' rights movement to combat the conservative parents' rights movement. I want to talk about kids, I want to think about things from their perspective, to empower them. We can't shrug our shoulders and say, "Well, my kids are properly educated and those other kids aren't mine. They won't learn about evolution or racism or climate change. That's sad, but not my business." And I don't want the childless to think, "I don't have kids so this doesn't involve me at all." We are all in this together.
I like your civics education tie-in, because it distills your argument to two parts: children's rights for the sake of children's rights, and then also children's rights for the sake of democracy.
Yes, love that.
One more thing on parents: You and I have exchanged emails about your discussion of helicopter parenting in the book. What you're calling "helicopter parenting," I call "intensive parenting." It's this idea that parents today, even if they aren't hovering and micromanaging, are having to invest time, energy, planning — all of this labor into their children's lives.
I'm happy for us to just say "intensive parenting."
Great. So that has become an ideal, across backgrounds, across income and wealth levels. The result is, first, that kind of behavior pays off for individual children whose parents have the resources to parent them intensively. In terms of standard metrics, that subset of privileged kids does get ahead. The second result is that intensive parenting has sort of become non-optional for parents, because its widespread adoption has ushered in social mores like "children should be observed at all times."
I think that's right, and it's really different from previous generations. We have put the business of raising children squarely on the shoulders of individual parents, and it's incredibly resource-intensive and exhausting. We have just abandoned this idea that raising kids is a communal enterprise. And it asks too much of parents. It's one of the reasons American parents are feeling so burned out and depressed.
I think this line of argument proves your overarching point more than you realize, because kids are the canary in the coalmine here too. The ones "benefiting" from all these enrichment experiences might be getting great test scores or getting into elite colleges, but there are other metrics we should be considering. We are in the midst of a mental health crisis for our adolescents. Coming at it from a different angle, youth injury rates are through the roof. ACL surgeries are being done younger and younger, because kids playing club sports train with the intensity of much older athletes. Levels of narcissism in adolescents have gone way up over the decades. So I wouldn't say that all this enrichment is really putting those kids ahead. But many parents feel like they can't opt out and, say, send their kid to play pick-up basketball at the park a few blocks away because we have changed our laws and expectations around kids being attended.
Exactly. Any individual parent who wants to give their kid more responsibility, who believes it's good for them to make decisions and be out in the world … your kid is going to be stopped by the police. In the book, I tell the story of an 11-year-old who tries to go to the art museum by himself. They wouldn't let him in. We've gotta look out for kids when they're not around their parents. There is so much research on the benefits of independent play and exploration. It's in the United Nations Convention on the Rights of the Child for a reason.
Hear, hear. Okay, so voting: The book blew my mind when you say letting teenagers vote wouldn't be skewing politics more progressive, it would actually be rectifying what for years has been a thumb on the conservative side of the scale. "We have blindly accepted rule by the old," you wrote.
One of the findings that comes out of the field of cultural cognition is that we all view life through the lens of our backgrounds and experiences, and young people have different backgrounds and experiences. Gen Z is the most diverse generation America has ever seen. They are a lot more concerned about climate change. They are a lot more concerned about inequality. If the whole point of democracy is for government to reflect the population, we're missing out on 18 years. It's a fairness issue, and it's also dangerous for America. We are going to make different decisions and ones that are in many ways shortsighted, because the stakes on a lot of issues are very different for someone who is 85 than someone who is 15.
That's true for The Paris Agreement, obviously, but also taxation, social security ...
Geographic mobility, zoning laws. If you already own your house, you're going to do whatever protects and increases the value of your home, even if that means less housing being available for folks who don't already own a home. Another downside of a government that skews old, according to research, is people's natural reluctance to take risks as they age. We should be taking good risks as a society, not be locked into the status quo. Young people are less wedded to party orthodoxy. They're more willing to consider individual issues independently rather than saying, "I'm Republican, therefore I believe X." I think the big pushback, even from liberal people, is …
They'll just vote the way their parents do?
Yes, and we have data that counters that assumption. Research also counters the claim that high schoolers don't have the necessary capacity.
In the book, you say we've almost got it backwards since current law presumes that adults are competent to vote and teens are not, but with aging …
Concerns about cognitive capacity, on average, are much better directed not at 16- and 17-year-olds but at 90-year-olds and 95-year-olds. Now sometimes people say, "Well, even if that's true, they just don't have the necessary life experience." And I think that's wrong.
If I understand your arguments about risk-aversion and party loyalty, you're saying there are benefits to not having life experience.
Yes, and also young people do have a wealth of experience with some of the most pressing issues: regulating social media, trans rights, racism, the effects of gun violence, the effects of inequality.
So where things get tricky, and a really interesting kind of tricky, is how we would go about giving kids a vote. You offer up a bunch of different options.
There are lots of paths forward, and the best news is we actually have models in countries that have already done this. Austria and Brazil have already lowered the voting age to 16. Other countries like Scotland have lowered it for specific issues. So I think one possibility is lowering the voting age just as we did to 18, we could simply lower the voting age to 17 or 16 or 15. A few jurisdictions in the U.S. have already lowered it to 16 for municipal elections. We could do that, get comfortable with the idea of young people voting, and then maybe 20 years later you lower it to 14 and so on.
When you say "just as we did to 18," you're referring to the 26th Amendment, right? The voting age in the U.S. used to be 21.
If we were leaving this up to researchers on cognition, 18 would not have been the choice. Around the Vietnam War, we moved it to 18 to satisfy those who were rightfully outraged that a whole swath of Americans was considered old enough to be drafted and sent to their deaths but not to vote. But eighteen is a terrible time because it's a moment of disruption in a lot of people's lives. People are leaving home. They're moving to college or starting work. It makes more sense to lower it so people can first vote when they are in a stable period, learning the ropes with their parents.
So one approach would be this gradual lowering of the voting age for everything. A second one you mention in the book is partial suffrage.
Yeah, so that can be like a learner's permit for voting. Maybe at 17 you get half a vote, at 16 you get a quarter vote, at 15 you get an eighth of a vote. This was an idea that was floated in California a few years back, and what it has going for it is sort of a gradual extension of rights rather than the flip of a switch which is not how development works. And we recognize that when it comes to driving. I'm reluctant to embrace it though, because our country has a really ugly history when it comes to thinking of people as partial persons. And children are full people.
Another form of partial suffrage would be to give them a full vote but only on some issues.
Yeah, but then what is a "kids' issue"? Well, education, clearly. But what about energy policy? That is too. On a fundamental level, all issues are kids' issues. Now another way to do partial suffrage is to grant children a full vote but allow others to exercise it until children possess the requisite independence and capacity to take the reins. Of course, then we have questions about how we decide when that is. I think the most appealing approach is to allow the child to demonstrate competence simply by applying. Some might want to do that earlier, some later.
So even a baby would have a vote but it would be cast by their parents or their guardians?
Yes. I had a conversation with a young person who was 10 or 11 and said something like, "It's really unfair that my family has four people but we only have two votes." He's right. It would align better with the "one person, one vote" ethos. Some people say that's over-voting for parents, but I don't think it is. It's representative democracy.
And you argue that we have a roadmap for doing this because we already make reasonable accommodations for voting under the Americans with Disabilities Act.
The Children's Bureau was actually created back in 1912 by President Taft to focus on the child. But over time, we moved away from organizing agencies around particular individuals and centered them on function instead.
Kids have opinions about a lot of stuff, even at very early ages. And if we worked hard in the same way that we work hard to build ramps and provide an interpreter or have someone read the ballot to a person who is visually impaired, we can do the exact same thing with children. If your concern is even if the logistics could work, children aren't informed enough, guess what, we could require civics education. In many states that's either not required or it's one year in high school. We could make it an important part of a young person's education, and that would put them in a position to exercise this right.
Let's shift to the private sector. Right now, you say our focus is on managing liability for harm rather than addressing harm. You write, "A business that cannot innovate and can only remain profitable if it harms children isn't a business that should stay open." And then you have some interesting suggestions. Can you talk about the child primacy norm and the Children's Bureau?
One of the first law review articles I wrote was about the obesity epidemic, and I spent a lot of time researching how fast-food companies and beverage companies targeted children. I became convinced that a large part of the problem had to do with the "shareholder primacy norm," this idea that companies must maximize profit for shareholders. And then if that produces harm, well, it's up to the EPA and other government agencies to keep companies in line. That has produced some real horrors over the course of the twentieth century, whether that's tech companies that built platforms without thinking about the impact on kids, or whether it's companies that make baby food and reclining sleepers. Just like child impact statements would change the government's approach, industry would have to proceed under a child primacy norm. A new product, a new marketing campaign would center the impact on children, not just profit, from the outset. The funny thing is if we do this right, we won't actually have less profitable businesses. But truly sustainable business practices will only come when we change what we tell businesses their job is.
Now, I also mention this idea of a stand-alone federal agency focused on ensuring the welfare and empowerment of the whole child. The Children's Bureau was actually created back in 1912 by President Taft to focus on the child. But over time, we moved away from organizing agencies around particular individuals and centered them on function instead. So now a whole host of different agencies are tasked with protecting kids in bits and pieces. As a result of that, we often miss the big picture. To tackle the scourge of lead paint, lead in the water, you need an entity that understands the implications not simply in the way the EPA does, but also the educational implications of lead exposure, the criminal justice effects of lead exposure, lead exposure in public housing, all things currently delegated to separate agencies. Having a stand-alone agency again would allow for coordination of those child impact statements too. And it would send a message to the country, that child welfare is something we value; it's cabinet level, as fundamental as Homeland Security.
I love how you're questioning allowing parents' preferences to trump what experts say is best for a kid. And I love the idea of a Children's Bureau. But then I'm left wondering, whose experts? Because there's this guy who's got legit-sounding credentials and goes around saying that less gun control makes communities safer. He's the conservatives' expert. What happens when progressives like you lose an election and experts like him are in control of this new Children's Bureau?
That's a great point, and it is a genuine danger. But experts are already weighing in on children's issues in countless ways. Government actors are already weighing in. So we're not adding experts necessarily. We're giving them different marching orders. Telling them to focus on children — not parents' rights, not business interests — has real value in and of itself. But it does not eliminate the danger. I think to further keep it in check we need to empower children with real political power.
So they would have positions within the Children's Bureau?
Children might have positions, yes, as formal advisors with actual power. Or they'd just be voters. That's a way to ensure we get political appointees who value what kids think is important.
What about kids running for office themselves?
Absolutely.
Not to answer my own question, but I'm sitting here realizing that my disaster scenario actually did just happen. We had a Secretary of Education who said the Department of Education should not exist. And it was awful in many ways. But in some ways it wasn't, because it takes a long time to undo the work of an agency and not everyone is a political appointee. A lot of good programs kept chugging and offices that were hamstrung got right back to work after the 2020 election.
Yeah, I think that's a great example. And I want to emphasize that I don't think experts are the only answer here. I think it takes all of us: parents, business … I think it's going to take all of us adopting a different mindset.
Last question: With our current mindset, do you think seatbelt laws would pass today?
I love this question. It makes me laugh, because the scary thing is, no, I don't think so. And that should tell us that something is deeply, deeply wrong. Seatbelt laws are absolutely a good idea. They save countless children's lives every year. They decrease healthcare and insurance costs. They are a minor encumbrance. But I genuinely don't think this sensible legislation would pass in a time of prioritizing parents' independence. And I think that means we've got to change course.
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