Applying the Bill of Rights to Your Kids

“It’s not fair!” “Don’t I have rights?” What about the Bill of Rights…

A couple of weeks ago, we talked about how we could apply the rules of evidence to our kids. What if we teach our kids the rights that all Americans are guaranteed in the US Constitution, and give them at least some of those rights?

Looking around, it’s clear that many kids grow up in households with “authoritarian governments.” “Why, mom?” “Because I said so…”

But do we really want to train our kids to submit and stand quietly as authority figures search their belongings or tell them where they can go, what to say, what to think, who they can associate with, or who to love?

Could this be why so many people are so willing to accept whatever the government does to them and to willingly surrender their constitutional rights? Are we unintentionally raising sheep who will later submit to an authoritarian government without complaint? Is that how we were raised?

The most hated and reviled people in our society – those who are accused of committing the most heinous crimes against their neighbors and community – are guaranteed rights. The Bill of Rights guarantees that, if any person is searched, prosecuted for an alleged crime, or told what to do, the process will be fair.

Should we give fewer rights to our children, and teach them they must submit and keep quiet when something is not fair?

What if we applied the Bill of Rights to our children, taught them some civics in the process, and taught them how to expect and demand the most basic of their civil rights? Kids’ most common complaint is, “It’s not fair!” Fairness is exactly what the Bill of Rights was intended to guarantee to all Americans – shouldn’t our children have the same benefit?

Let’s take a brief look at how we could apply the Bill of Rights to our kids, one Amendment at a time…

First Amendment

The First Amendment in the Bill of Rights contains several different clauses that should apply to our kids just as they apply to the most reviled, lowliest person in our society. For example:

1. Freedom of Religion: Most parents insist that their children learn and participate in the family’s religious practices. If your child instead wants to learn about and explore other religions, shouldn’t that be allowed? I understand the answer to this for most parents is a loud, “No,” but should it be?
2. Freedom of Speech: What if we guaranteed our kids the right to speak their minds freely, without negative consequences? We can teach them the limits of free speech in the First Amendment (“fighting words” aren’t covered by the First Amendment, for example), teach them to speak freely without fear of reprisals, and possibly encourage more open discussions with our kids.
3. Freedom of Assembly: Do we “forbid” our kids from hanging out with certain other kids who might be a bad influence? This is something that parents will always struggle with, but the key is reasonableness. No matter how hard we try to choose our kids’ friends, girlfriends, or boyfriends, they are going to end up making their own choices. Maybe we should offer advice and counsel while trusting our kids to choose who they associate with.
4. Freedom to Petition for Redress of Grievances: Kids should be free to complain about unfair treatment without fear of reprisals, just as Americans should be free to complain about unfair police, legislators, laws, or other government activity without reprisals.

Second Amendment – the Right to Bear Arms

A bridge too far?

The Second Amendment is possibly the most debated and least settled Amendment in the Bill of Rights. My kids will not have the right to bear arms until they are at least 18, but this is obviously a personal view that parents may differ on.

Each parent is free to decide at what age a child should learn to handle firearms and when a child is mature enough to handle firearms on their own. Be responsible about it.

Fourth Amendment – Freedom from Unreasonable Searches and Seizures

I really want to know if my kid has a marijuana pipe stashed in his room somewhere. I should know that, right? How could I know unless I search his room?

Some parents regularly search their kids’ rooms, sometimes with their kids’ knowledge and sometimes when the kids aren’t looking. Should you, though? Don’t kids, like every person in America, have some expectation of privacy?

I believe they do, and I believe we should teach them the boundaries of a “reasonable expectation of privacy.” I will respect your privacy unless I have a really good reason not to – for example, probable cause that a crime (or rule violation) is being committed.

If I’m just an anxious parent who wants to be sure my kid doesn’t have drug paraphernalia in their room, I probably should not violate my kid’s right to privacy to satisfy my curiosity. If my kid goes to spend time with a questionable friend, however, comes home looking stoned with bloodshot eyes, and there is a faint odor of marijuana, that’s the parenting equivalent of probable cause and may justify a search.

If you’re going to search your kids’ room, make sure that you have a good reason (probable cause) and explain to your kid what your probable cause is before you search.

Note that, while the Fourth Amendment in the Bill of Rights contains our right to be free from unreasonable searches and seizures (as well as requirements for search and arrest warrants), Article One Section Ten of the SC Constitution also contains an explicit right to privacy.

Fifth Amendment

The Fifth Amendment is another one that contains several different constitutional rights that should apply to our children – and that our children should learn – including:

1. Notice: “What did I do wrong?” Sometimes (and sometimes intentionally), kids will insist they don’t know what they did wrong, or that they are in trouble for something other than what they did. It’s only fair that 1) kids should know the rules before they get in trouble for breaking them and 2) kids should know exactly what they are getting in trouble for.
2. Double Jeopardy: Once a matter has been addressed, there usually is no need to bring it up again next month – if a kid does something wrong, and a negative consequence has been given to them, let that be it and don’t add extra punishments later.
3. Self-incrimination: Unless we want to set our kids up to spill the beans every time an authority figure questions them (and possibly see our kids in prison one day), we could teach them that it is okay to remain silent in the face of pressure. Why not teach them to always 1) tell the truth or 2) say nothing? You should never lie, but you don’t have to incriminate yourself or your friends.
4. Due Process: “It’s not fair!” The heart of due process is fundamental fairness – kids’ most common complaint about how they are treated. If little Billy’s sister got a verbal reprimand for cussing, it’s not fair if little Billy gets a week’s restriction for saying the same cuss word. The procedure, the rules, and the consequences should be the same for everyone.
5. Taking of Property: Sometimes we get it into our heads that if it’s in our house it belongs to us. We bought that for the kid, so we can take it away… Except, once we give it to the kid, it belongs to the kid. If, for some reason, it is necessary to confiscate a kid’s property, we should 1) make sure they understand why it is necessary and 2) compensate them in a fair way for the loss of their property.

Sixth Amendment

The Sixth Amendment is another one that is full of constitutional rights, although these may not apply to the kids as often as some of the others. For example:

1. Speedy and Public Trial: My kids aren’t going to get a “public trial.” But why not involve the rest of the family? It could be a learning experience that allows everyone to participate and helps to keep the process fair.
2. Impartial Jury: Again, my kids probably aren’t going to get a jury trial at home. And their judge and jury will probably be me. But I can try to be fair and impartial, and, in some situations where it is a close call, I could allow their siblings or other family members to have a say in whether the kid was wrong and what their punishment should be if any.
3. Notice: The rules and the consequences for violating them should be clear before any child is punished for a rule violation.
4. Confrontation: If a child is being punished for something that someone says they did, they should know 1) who said it and 2) what was said. It may not be practical to allow a younger child to “cross-examine” every witness, but they should have an opportunity to hear the accusations and respond to them.
5. Compulsory Process: Every criminal defendant has the right to subpoena favorable witnesses with the court’s assistance. Similarly, if a child says that there is a witness who supports their version of events, we should make every effort to locate that witness and find out what they have to say.
6. Assistance of Counsel: In general, kids don’t want or need the “assistance of counsel.” But, if my kid asks me to let someone speak for them, there is no reason to not give them that right.

Eighth Amendment

How do we keep punishment fair? In most cases, we should probably be talking in terms of “positive reinforcement” and “negative reinforcement.” But, keeping it simple, we will call it “punishment.” The Eighth Amendment in the Bill of Rights contains our right to “fair punishment.”

• Excessive Bail: It is unconstitutional to force a criminal defendant to remain in prison simply because they cannot afford their bail (although most courts in the US ignore this). Similarly, we probably should not force the kid to stay in their room for hours or days while we figure out what to do – resolve the issue as quickly as possible, and don’t make the kid feel like they are being punished before it has been established what they are being punished for.
• Excessive Fines: We don’t ordinarily fine kids. But, if we did, we should keep in mind that they are kids with limited income and it’s probably not going to teach them anything to just take away their money.
• Cruel and Unusual Punishment (or Corporal Punishment): The US Constitution prohibits “cruel and unusual punishment.” Obviously, it’s not fair to the child to lock them in a dog crate as punishment – that would be both cruel and unusual. In general, a child’s punishment should be similar in degree and nature to the punishments given to other children under similar circumstances. The SC Constitution also prohibits corporal punishment…

Amendments Three, Seven, Nine, and Ten

The Third, Seventh, Ninth, and Tenth Amendments aren’t necessarily relevant to the kids (or criminal defendants in most cases). The rights they contain include:

• The right not to have soldiers quartered in your home without your consent (do kids have a right not to have Uncle Joe quartered in their room when he comes to visit from Maine?),
• The right to a jury trial when the value in controversy exceeds $20,
• A statement that the rights included in the Bill of Rights are not all-inclusive, and
• A statement that all rights not given to the government are reserved to the people.

Questions About Your Constitutional Rights?

The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.

If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.