Most arguments in favor of curfews are predictable, and people are easily defeated in debate. But it's important to remember that, most frequently, the logical position of curfew defenders isn't always relevant. They're using rhetoric to justify their emotions, not vice-versa. Being combative won't win any hearts over; be nice. Remember: Believe it or not, nearly everybody, on both sides of the issue, just want what's best for kids.

It's important to remember, too, that many people fear that not having a curfew means that kids can run free in the streets and generally raise havoc. Whether or not you believe it, it's often important to stress the role of parents over government in child-rearing.

Questions

1. Kids need restrictions. They shouldn't be out that late!
   
2. Children don't have full constitutional rights.
   
3. But if the government isn't allowed to do that, how is it that they're allowed to have curfews?
   
4. How is it that they're unconstitutional?
   
5. Well, without a law, how do we keep kids inside?
   
6. Curfews are just tools to be used against kids that look suspicious.

1. Kids need restrictions. They shouldn't be out that late!

That's true, they shouldn't be. However, 80-year-olds shouldn't be out at 3:00am, either. In fact, there aren't many people at all that should be out in the middle of the night. But one of the great things about America is that we have the right to travel freely, without need to carry identification or proof-of-cause.

Perhaps more importantly, it's up to parents to establish restrictions for their children, not our government. Parents, of course, know their children far better than a law. If a 17-year-old's parents believe that their child is mature enough to go to a 9:45 movie that gets out at midnight, why should a law say otherwise?

Children should be raised by parents, not laws.

2. Adults have the right to travel freely. Children don't have full constitutional rights.

Of course they do! It has been proven over and over that children have every right guaranteed to them in the Constitution and, more important, in the Bill of Rights. In the famous Tinker vs. De Moines (aka Tinker vs. State of Iowa) it was ruled that youths have full First Amendment rights.

What must be understood, though, is that the parents of a child have the right to control their children's behavior. They can, for example, prevent their children from using certain words (ie, cursing), or limit their children's movements (ie, grounding them.) While the US government cannot generally control citizens in this manner, parents can and should be able to do this.

But don't confuse that with the government's role. Our government still cannot treat children different than adults, Constitutinoally-speaking.

3. But if the government isn't allowed to do that, how is it that they're allowed to have curfews?

Because it hasn't been proven that curfews are unconstitutional. It's not that curfews have been tested and lost. In fact, when asked to review Schleifer vs. Charlottesville, The Supreme Court denied the request.

Curfews have been tested in lower federal courts, with mixed results. Some cases ruled in favor of curfews, some (notably Washington, DC) against. There's not enough of a precedent established to be helpful.

Until the Supreme Court takes this up, there will be no resolution for whether or not curfews are legal.

4. OK, explain. How is it that they're unconstitutional?

Curfews are in violation, it appears, of both the First and Fourth Amendments to the Constitution contained within the Bill of Rights.

The First Amendment states that "Congress shall make no law respecting the right of the people peaceably to assemble." Translated into modern language, it says that "No laws can be passed that say that people can't hang out together."

Curfews are almost always passed to prevent groups of young people from gathering ("assembling") in public places. But this is a Constitutionally-protected act. The Bill of Rights couldn't phrase that much more clearly.

The Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

This is less clear-cut than the First Amendment. The Founding Fathers did this on purpose: they inserted the word "unreasonable." So this is less cut-and-dry. But when a young-looking person in their late teens is asked for identification every time that they're out late, that seems unreasonable.

Worse yet, if they didn't have identification, they'd be detained until they could prove their age. That's a bad setup, and a bad law.

To see why youths are guaranteed the same rights as adults, see Children don't have full constitutional rights.

[Note: Be certain that the law that you're discussing does not contain a First Amendment Exception.]

5. Well, without a law, how do we keep kids inside? Sure, there are lots of reasonable parents that control their kids, but what about the ones that don't? Won't we have two-year-olds wandering around in the streets at 3:00am selling crack?

I think we can all agree that the above scenario shouldn't be taking place. And we can also agree that a police officer would step in and take care of things. A curfew would not be necessary to appropriately handle this situation.

Though that example is rather extreme, the point is clear. When a youth -- or anybody -- is breaking the law, appropriate police action must be taken. When a child is a victim of neglect, again, action must be taken. Legal action can be brought against parents who permit their children to wander free at night. It's called "neglect," and there's lots of precedent for prosecuting it.

To return to the most important point, children and teenagers that commit crimes must be punished. Children and teenagers that are guilty of nothing more than attending a late-evening jazz concert should be permitted to go about their business without being bothered.

6. But I think that you just made a good point: police are after kids that commit crimes. Curfews are just tools to be used against kids that aren't actively committing crimes, but look suspicious. Of course, it won't be used against kids sitting in a coffeeshop. Just against the bad kids.

Do you know who police will go after? Do you know who the "bad kids" will be? Black kids. The police very well may not go after a 15-year-old white girl that's well-dressed, but they will go after a 15-year-old black boy wearing baggy clothes and wearing headphones. In the eyes of many police officers, his very being is suspicious.

This is similar to the rash of nationwide arrests of black drivers. In fact, blacks are pulled over so disproportionately that a term has been coined for it: DWB, Driving While Black.