Article by Vivian E. Hamilton
Young people today come of age in a cultural and economic milieu that prolongs their attainment of the traditional markers of adulthood. Their subjective conceptions of the transition to adulthood also depart radically from the traditional conception, with its emphasis on discrete transition events (including marriage and entry into the workforce). Instead, the modern transition to adulthood is a gradual process comprising the acquisition of general capabilities, rather than the achievement of externally constructed events. The state-established age of legal majority stands in marked contrast to this gradual and prolonged process. Not only does it categorically establish the inception of adult status, but states in the mid-twentieth century adopted laws lowering statewide ages of majority from twenty-one to eighteen.
Setting legal adulthood at eighteen fails to accord with the trajectory of individual development, the time needed to acquire the skills and education demanded of individuals in the modern labor market, and even the social experiences of young people coming of age in modern America. In other words, the legal construction of adulthood is starkly at odds with its social and cultural constructions.
Moreover, we now understand that young people reliably attain different capacities at distinct stages of development. Thus across a range of policymaking contexts, any categorical rule will fail to take account either of context-specific capacities or deficiencies. The core commitments of the liberal democratic state, however, require it to extend to individuals those rights which they have attained the capacity to exercise—in other words, to recognize and account for context-specific capacities.
An ever-growing number of exceptions to the age of majority confirms its diminishing utility as a presumptive marker of adult capacity. Abandoning altogether the presumptive age of legal majority in favor of context-specific rules advances the state’s liberal ends and better aligns the legal and socio-cultural constructions of adulthood. The developmental and behavioral sciences can and should supplement more traditional policymaking considerations. Finally, existing law, already rife with exceptions to the age of majority, demonstrates that context-specific decision making imposes no undue burden on lawmakers.
About the Author
Cabell Research Professor of Law, William & Mary School of Law. B.A. Yale College, J.D. Harvard Law School.
91 Tul. L. Rev. 55 (2016).