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Abstract

American constitutional law is defined by a rights-bearing archetype that prioritizes adults—and the Equal Protection Clause is no exception. The Supreme Court has recognized children as constitutional persons and proclaimed that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone," but courts mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers. For the first time, this article reveals six adult-rights-bearing analytical traps that limit children's equal protection, and proposes jettisoning the rigid Carolene Products test in favor of a nascent youth-based framework. Instead of shoehorning children's rights into a web of laws and principles designed for an adult rights-bearing archetype, discrimination against children merits a framework on its own terms. This article concludes by introducing three youth-based paths to heightened scrutiny when laws: (1) use children as a means to create or maintain a caste system; (2) punish children for matters over which they have no control; or (3) erect an insurmountable barrier to children's ability in the political process to remedy large-scale catastrophic harm inflicted upon them, such as the disproportionate injuries to young people from the climate crisis and gun violence. This article lays the groundwork for a "children's equality law" that both accommodates young people's qualities, characteristics, and needs and provides them equal protection of laws.

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