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University of Toledo Law Review

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This article documents an earlier episode in our tortuous history of dealing with deviant norms and different children to illustrate the role played by judicial rhetoric in concealing correctional prejudice and following a dominant cultural blueprint. Using a term familiar to our child-saving predecessors, it is a tale of "incorrigibility." The first section of this article introduces the problem and glances at the historiographical treatment of child saving. The second section limns a picture of childhood in early nineteenth-century America, and argues that the idea of family autonomy was largely a myth. Particularly in the lives of lower-class youth, primarily from Roman Catholic immigrant families, the legal culture supported a preference for state intervention. The common schools and the reform schools were both designed to hold poor children long enough to instill Protestant and nativist values. The third section considers the spread of the "supplemental schools," institutions-like the houses of refuge-designed to educate and reform wayward youth in a carceral environment. Particular attention is paid to the Philadelphia House of Refuge, which served as both a characteristic juvenile institution and the subject of a state supreme court decision which helped shape the contours of child saving for a century. The fourth section turns to the struggle in the state courts, and analyzes the quick ebb and early flow of constitutional protections of childhood liberties. The rationale that juvenile refuges were schools and not prisons proved a compelling metaphor for the shelving of early constitutional concerns. The fifth section explores the rhetoric of child saving in a century of court decisions which represented the triumph of metaphor over reality.



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