circumstances youth will receive] less constitutional protection than
adults.”109 When determining constitutional rights, it has been argued
that children should have equal consideration.110 The difference is, as
in Bellotti, the child’s ability to fulfill their role in appreciating and
applying those rights.111 This equal consideration theory is based
upon a common sense approach of three equal theses: Equal
Consideration Thesis, Unequal Consideration Thesis, and Limited
Parental Rights Thesis.112 It has been further argued that equal
consideration should be given to everyone due to his or her moral
status.113 The equal consideration theory should be applied to the
rights of individuals. Children are entitled to moral consideration
simply because they are persons.114 The Constitution, under this same
premise, protects rights of all individuals without exception.115
Because children are persons, they are entitled to the same
constitutional protections as any adult.116 In order to deny this
assertion, one would need to argue either that individuals do not
derive their rights from their status as persons, or that children are not
Therefore, by virtue of “being,” the same rights protected for
109 Henning, supra note 53, at 59.
110 Brennan & Noggle, supra note 3, at 2.
111 Bellotti, 443 U.S. at 634.
112 Brennan & Noggle, supra note 3, at 3 (offering a rights-based theory of the
moral status of children that the authors claim both meets the constraints that define
the commonsense position and resolves the internal conflicts the three theses may
propose). By “distinguishing basic rights to which all persons are entitled from
constructed rights that depend on factors besides one’s status as a person, and by
thinking of parental rights as stewardship rights and thus as right with thresholds,
we can reconcile the three claims that make up the commonsense position with
regards to the moral status of children.” Id. at 13.
113 Id. at 2.
115 See U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States . . .
.”) (emphasis added).
116 Brennan & Noggle, supra note 3, at 3.