Anne C. Dailey: Evangeline Starr Professor of Law, University of Connecticut School of Law. B.A., Yale College; J.D., Harvard Law School. Work on this Article was supported by a Chancellor's Research Fellowship from the University of Connecticut. Thanks to Doron Ben-Atar, Sidney Blatt, Steve Ecker, Peter Gay, Sally Gordon, Kaaryn Gustafson, David Herring, Linda Mayes, Jeremy Paul, Jeff Powell, and Vicki Schultz for comments, some on a much earlier draft. This paper is a significantly revised and expanded version of a paper that received the 2003 CORST Essay Prize from the American Psychoanalytic Association. Portions of this paper were originally published in 53 J. AM. PSYCHOANALYTIC ASS'N 1175 (2005). Used with permission. 2005 American Psychoanalytic Association. All rights reserved. Page 432
A democratic society rests, for its continuance, upon the healthy, well- rounded growth of young people into full maturity as citizens, with all that implies. - Prince v. Massachusetts 1
The Supreme Court has known for over a half century that the survival of our constitutional polity ultimately depends on the proper cultivation of children's "hearts and minds." This idea was expressed most directly in Brown v. Board of Education,2 where a unanimous Supreme Court concluded that segregated schooling affects the psychological well-being of African- American schoolchildren in a way that undermines "the very foundation of good citizenship."3 On many other occasions as well, the Justices have formulated constitutional doctrine to foster the development of psychological skills in future citizens.4 Yet for all the normative force of this idea, its meaning has never been fully explained or elaborated, nor even likely understood. Courts and commentators have not paused to analyze with care the relationship between child development and democratic citizenship as an issue of any importance in constitutional law. To the contrary, over the last fifty years constitutional law has actually lost sight of the critical developmental affiliation between hearts and minds. This Article aims to reintroduce constitutional law to the importance of children's psychological development by presenting a comprehensive theoretical and empirical account of the connection between early caregiving relationships and the reasoned thinking of adult citizens.
The ideal of the autonomous individual capable of meaningful choice and informed decisionmaking is a core operative concept in modern constitutional law, central to contemporary accounts of individual liberty and democratic self-government.5 Yet an understanding of reason's empirical substrata-what it actually means psychologically for an individual to lead a self-defined life and to participate in the activities of democratic self-government-has yet to emerge. Easily identified are the conditions of mind excluded from reason: irrationality, emotional excess, inner compulsions, external coercions, and instinctual drives. But identifying with any specificity what reasoned thinking involves is much less clear. Certainly Page 433 an individual's capacity for leading a self-directed life and participating in the processes of democratic self-government entails much more than the cognitive skills of information processing, logical analysis, and conceptual thinking. At a minimum, a citizen must be able to identify his or her beliefs, values, and commitments and to think and act in a manner consistent with those choices. Because beliefs, values, and commitments are not always clear or consistent, critical reflection has an essential role to play in the process of reasoned thinking. Sources of emotional understanding such as empathy and intuition also contribute to the capacity for reason, as do the mature psychological skills of emotional regulation. The psychological skills of citizenship so defined encompass both heart and mind: basic cognitive abilities as well as the integrated psychological capacities for personal self- reflection and emotional self-mastery.
It is the process of becoming a citizen in the full psychological sense of the term-how we acquire the integrated cognitive and emotional capacities of mature reasoned thinking-that makes understanding how children develop so vital to the elaboration of our most deeply held constitutional ideals. Research on children's psychological development provides a starting point for conceptualizing the maturational trajectory from infancy to adult citizenship. This developmental research teaches that the emotional and cognitive skills of reasoned thinking are not necessary, self-executing, and inevitable attributes of human existence, but rather begin to develop in the context of the early caregiving relationship. While the early caregiving relationship is not the only context relevant to the development of reasoned thinking, it is arguably the most important. Being the first, it establishes a template for the influence of later relationships, including teachers, friends, spouses, partners, and children, across the span of the individual's life. And being affect-driven, it gives rise to a psychological world in which emotion and cognition cannot be separated. Feeling is thinking in the earliest months of life. Developmental research shows us in what way early family relationships are the source of our most emotionally charged attachments and commitments as well as our capacity for integrating and managing our deeply felt passions and prejudices.
The implications of developmental research for constitutional law are simply stated: When sufficiently responsive to a young child's needs, early caregiving relationships help to cultivate the cognitive and emotional processes that are the foundation for adult citizenship. Developmental research does more than simply confirm the common sense proposition that well-functioning families are good for children and therefore good for society. The field helps us to identify with specificity the caregiving conditions most likely to foster the cognitive and emotional skills required of democratic citizens. Developmental researchers cannot identify with any degree of precision the point at which the quality of childrearing falls below the threshold required for the normal processes of psychological Page 434 development to unfold. Nor can developmental psychology explain why some children who lack good-enough caregiving nevertheless grow up to become psychologically robust adults. What developmental psychology does provide is empirical information showing that good-enough caregiving, in the aggregate and over time, makes an essential early contribution to the development of those psychological capacities that are necessary to the maintenance and flourishing of our modern democratic polity.
A developmental perspective on citizenship poses a challenge to traditional views about children and families in constitutional law. Despite the fact that political scientists and cultural anthropologists have been writing for decades about the family's important role in the political socialization of children,6 constitutional and family law scholars have largely avoided the subject.7 Feminists and family law scholars criticize the idea of the family as a private enclave separate and apart from the public sphere,8but these critics shy away from identifying the existence of a distinctly public role for the family in raising future citizens.9 Similarly, modern constitutional scholars tend to regard family relationships as more Page 435 appropriately governed by the values of free choice and personal autonomy than by the norms of democratic political life.10 Contemporary political theorists acknowledge the role of families, schools, religious associations, neighborhoods, and other social groups in the socialization of children, but most of these theorists do not give adequate attention to what is distinct about family relationships. Families are broadly classified with other social groups without any careful analysis of the actual empirical mechanics of child development.11 By failing to undertake a close empirical examination of the family's contribution to children's development as citizens, constitutional and family law scholars overlook the possibility that early caregiving provides something unique in the socialization process, beyond the usual reach of civil associations in a liberal democracy. Later associations, most notably educational ones, will contribute to the development of democratic skills and values, but the foundational processes of democratic citizenship are laid down in the early caregiving years.
This Article's elaboration of the need for an empirically grounded developmental perspective in constitutional law is new, but Supreme Court attention to the issue of democratic socialization is not. Part II describes how the Supreme Court has been engaged in a quiet debate over the place of children in a democratic polity for the past half century. Much of this debate has addressed the State's proper role in inculcating democratic values and loyalties in public school children. Part II.A describes this debate as it Page 436 emerged in the foundational cases of Meyer v. Nebraska,12 Pierce v. Society of Sisters,13 West Virginia State Board...