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State constitutions have been used to expand rights to , and even . As American families and early educators continue to struggle with a broken child care system, constitutional amendments lay on the table, gathering dust like an unused tool. It may be time for child care champions to consider leveraging this tool to establish a fundamental right to child care.

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 鈥� but also . Some years later, in 1881, then-President James Garfield inveighed on the importance of these rights . 鈥淭he 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,鈥� he said. 鈥淚f that generation comes to its inheritance blinded by ignorance and corrupted by vice, the fall of the Republic will be certain and remediless.鈥� Garfield concluded that, 鈥淔or 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.鈥�

By universal education, of course, Garfield was largely excluding the early years 鈥� 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 鈥� and guaranteed access to 鈥� a child care slot. There would be protections in place to ensure that right. For example, every state has a , so if a resident鈥檚 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 鈥� and will likely win. It鈥檚 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.

There are only a few instances in which early childhood has been addressed by state constitutions, and most of them focus solely on pre-K rather than a comprehensive child care system. Still, they鈥檙e notable. The most clear-cut example comes from Florida. As Aaron Loewenberg of the think tank New America explained , 鈥淚n November 2002, Florida voters voted by a 59 to 41 percent margin to approve a constitutional amendment making their state the first in the nation to grant four-year-olds a state constitutional right to pre-K. The Florida Constitution that, 鈥楨very four-year old child in Florida shall be provided by the State a high quality pre-kindergarten learning opportunity in the form of an early childhood development and education program which shall be voluntary, high quality, free, and delivered according to professionally accepted standards.鈥欌�� 

In New Jersey, meanwhile, a decades-long legal battle known as 鈥� though not resulting in a right to child care 鈥� ended with courts requiring the state to make major pre-K investments in low-income counties as a matter of educational equity. And New Mexico鈥檚 2022 involved dedicating a portion of the state鈥檚 Land Grant Permanent Fund to early childhood education. While it was a major win for the state, there鈥檚 an important distinction to make: the amendment created a stable funding pathway that powered the 2025 policy which expanded free child care eligibility, but did not establish a right to child care because the state legislature isn鈥檛 obligated to fully fund the system or guarantee a slot. 

It鈥檚 also important to recognize that establishing a constitutional right to child care doesn鈥檛 guarantee that the service is high-quality or that service providers are well compensated. There have been long-running battles in states from to where the courts tell the legislature they need to put more money into the state鈥檚 public education system, and the legislature pushes back or refuses. Similarly, Florida鈥檚 pre-K amendment has had a rocky translation into practice: as Loewenberg notes, Florida鈥檚 program 鈥渉as fallen short of the lofty goals announced upon the amendment鈥檚 passage. The good news is that sixty-eight percent of the state鈥檚 four-year-olds were enrolled 鈥� during the 2021-2022 school year, making Florida second in the nation when it comes to pre-K access for four-year-olds. However, the state only spends about $2,200 per child, making Florida 43rd out of 46 states when it comes to per pupil pre-K spending,鈥� leading to many quality concerns. Often, the state only covers three to four hours of pre-K per day. 

Still, constitutionally-protected services present a stark contrast to America鈥檚 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 . Thus, the very debate over whether child care should be a constitutional right could in and of itself help reshape public opinion.

Realistically, amending state constitutions . In many states, the process is arduous and requires action by state legislatures that may be reluctant to obligate themselves to fund a new entitlement. That said, child care champions would do well to consider state constitutional amendments as a long-term strategy. If child care undergirds strong children, strong families and strong communities, then it would call on a great American tradition to assert the need for constitutional authority enshrining the savory influence of universal child care.

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