Excerpts
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Constitutions are powerful, both practically and symbolically. After the Civil War, as Congress was debating what defeated Confederate states must do to rejoin the Union, a surprising requirement rose to the top. When Southern states rewrote their constitutions, they were expected to include voting rights — but also a right to public education. Some years later, in 1881, then-President James Garfield inveighed on the importance of these rights in his inaugural address. “The voters of the Union, who make and unmake constitutions, and upon whose will hang the destinies of our governments, can transmit their supreme authority to no successors save the coming generation of voters, who are the sole heirs of sovereign power,” he said. “If that generation comes to its inheritance blinded by ignorance and corrupted by vice, the fall of the Republic will be certain and remediless.” Garfield concluded that, “For the North and South alike there is but one remedy. All the constitutional power of the nation and of the States and all the volunteer forces of the people should be surrendered to meet this danger by the savory influence of universal education.”
By universal education, of course, Garfield was largely excluding the early years — but we now understand how inextricable early childhood experiences are from any desired child outcomes. While more states are moving in the direction of dedicated funding sources for child care (and in 2022, New Mexico even passed a constitutional amendment that committed funding to early education), none have yet tapped the ultimate forcing function: passing a constitutional amendment establishing a right to child care.
In practice, a constitutional right to child care would likely mean that every child in the state would be entitled to — and guaranteed access to — a child care slot. There would be protections in place to ensure that right. For example, every state has a constitutional right to some form of public education, so if a resident’s local public school district refuses to enroll a child, or tries to charge a fee for enrollment, a parent or guardian can take the district to court — and will likely win. It’s important to note that a hypothetical right to child care does not necessarily mean child care services must be government run, merely government funded; an amendment could be written in a way that maintains a mixed-delivery system including a variety of center- and home-based settings.
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It’s also important to recognize that establishing a constitutional right to child care doesn’t guarantee that the service is high-quality or that service providers are well compensated. There have been long-running battles in states from Pennsylvania to Kansas where the courts tell the legislature they need to put more money into the state’s public education system, and the legislature pushes back or refuses.
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Still, constitutionally-protected services present a stark contrast to America’s largely pay-to-play child care system in terms of access and cost. A constitutional right is also extraordinarily difficult to remove once enshrined, and when a state establishes this kind of entitlement, it conveys a sense of values that can shape how society perceives an issue. It is perhaps unsurprising that many of the European nations with strong child care infrastructures, from Finland to Germany, have crafted their systems within a rights-based framework. Thus, the very debate over whether child care should be a constitutional right could in and of itself help reshape public opinion.
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