Curry on Tanenhaus, 'The Constitutional Rights of Children: In re Gault and Juvenile Justice' (book review)

Is a child's basic right that of liberty or custody? In 1967, Justice William Brennan posed this question during oral arguments in  In re Gault . Nearly fifty years later, David S. Tanenhaus's elegant analysis of this interesting case demonstrates the legal and historical complexities underlying Justice Brennan's deceptively simple question. For the millions of young citizens who have found themselves enmeshed within the United States' juvenile justice system, the answers to Justice Brennan's question have carried life-altering consequences. For historians and legal scholars, exploring various responses in differing times and places reveals a great deal about Americans' fundamental beliefs and values. Since its inception the juvenile justice system has occupied an ambiguous space, meting out both social welfare and social discipline. But whether its dual nature provides minors with the best or worst of both worlds has remained a difficult question. Appearing at the turn of the twentieth century, juvenile courts were the product of social and legal reformers' insistence that children's natural state of dependency obligated the state to ensure their protection;  parens patriae  was, for these reformers, a very broad mandate and they endowed the new juvenile courts with a deep reach into children's lives. By mid-century, however, it had become clear that minors' dependent status could hurt as well as help them, particularly since states took widely varying approaches in dispensing juvenile justice. The problem came into sharp focus when fifteen-year-old Arizonan Gerald Gault faced six years of incarceration in a brutal state institution for allegedly making a lewd phone call intended as a prank. As Tanenhaus demonstrates,  In re Gault  provided the U.S. Supreme Court a rare opportunity to address crucial questions about whether the protean character of the American juvenile justice system rendered children powerless to defend themselves against its own worst excesses. The Warren Court's ruling established that minors do indeed have a limited set of due process rights. Delivered just one week after  Miranda v. Arizona , however, the opinion also signaled that the Court's "due process revolution" was rapidly approaching the end of its controversial run.