Two cases from the mopping-up phase of the recent Supreme Court term—J.D.B. v. North Carolina and Brown v. Entertainment Merchants Assn.—have me thinking about kids and the Constitution.

These two cases join prior Court decisions that delineate the constitutional rights of minors—cases such as Tinker v. Des Moines School District (1st Amendment—children have free speech rights in schools); New Jersey v. T.L.O. (4th Amendment—students possess rights against search and seizure but those rights are less, at least in schools, than adult rights); and Roper v. Simmons (8th Amendment—death penalty prohibited for crimes committed by persons under 18).

Justice Thomas’s dissent in Brown notwithstanding, it is abundantly clear that the train has left the station in terms of kids having constitutional rights.   (As Sean Bradley noted in his blog entry on Brown, even uber-originalist Justice Scalia doesn’t go so far as to claim that because children had no rights of their own at the time of the framing they have no rights today.)

But it is also apparent, though less clear, that the level of protection afforded children by the Constitution  remains unsettled and unpredictable.

J.D.B. posed the question whether the age of a suspect matters in determining whether Miranda standards have been met. (The case involved questioning of a 13-year-old by a police officer at school with a vice-principal but no parents present.) The Court said yes, age matters. Kids have rights, but kids’ rights are different than adults’.

Brown posed the question whether California could impose free speech restrictions on minors that would be impermissible for adults. (The case involved the sale/purchase of violent video games.) The Court said no, age doesn’t matter. Kids have rights, and kids’ rights are the same as adults’.

Pardon me, but….what?

OK, so different lineups of Justices and different amendments. Not to mention this Court’s continuing solicitude for corporations, a factor that could well have been at play Brown.

But as a parent, I see something else in these two cases.

In particular, what strikes me is the utter absence of parents in J.D.B. and the arguable presence of parents in Brown.

In J.D.B., we have a 13-year-old—that’s an 8th grader, mind you!—questioned by a police officer at school with a vice-principal present and not a parent in sight.  Excuse me, but if that had been my kid I would have gone ballistic!  Part of being a parent is serving as a buffer between your kids and the powers that be, a buffer that the authorities here (both the school and the police officer) seemed to regard as utterly inconsequential.

In Brown, in contrast, we have a host of under-18’s who are to one degree or another under the supervision of their parents in both the buying and playing of violent video games. I’m not a fan of these graphic video games, but I do admit to reading Grimm’s Fairy Tales in their original macabre version as a child and I do see Justice Scalia’s point (mark this as a first!) that violence and value may be difficult to separate. But even more important, would I as a parent really want the state setting itself up as an authority in the conversation on these questions between me and my kids?

Trust me, I’m NOT about to buy into Justice Thomas’s bizarre originalist argument that children should have no constitutional rights of their own today because of the Framers’ views on parenthood over two centuries ago.

On the other hand, I wonder if Justice Thomas hasn’t in some convoluted way identified an important undercurrent here—the question of parents and where they fit in the Constitution-kid relationship.

* By the way, a more intriguing question than that actually posed in J.D.B.: What result if a minor’s parents consent to a search without consulting the minor?