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Michael Farris

Abstract

Should substantive due process be replaced? Justice Clarence Thomas and others have recently reignited the debate surrounding substantive due process, causing advocates of parental rights to feel uneasy. They are concerned about suggestions to reverse certain Supreme Court decisions relying on substantive due process—like Justice Thomas’s suggestion in his concurrence in Dobbs v. Jackson—because parental rights cases have traditionally relied on substantive due process. Given the uncertainty arising from Justice Thomas’s disparagement of substantive due process, no one should assume that the outcome of a parental rights case will follow the normal ideological divide on the Supreme Court. Accordingly, a parental rights theory that is accurately grounded in constitutional originalism is the need of the hour.

This Article attempts to begin the conversation of how to think about federal constitutional protection for parental rights without reliance upon substantive due process. It identifies two fundamental problems with substantive due process that leave the doctrine open to just criticism. First, the determination of which rights are “liberty interests” protected by an Amendment is far too easily manipulated by judges to match their favored policy outcomes. Second, the standard of “strict judicial scrutiny,” which is supposed to follow the conclusion that a particular right is a “fundamental liberty interest,” still allows judges a great deal of opportunity to inject their policy preferences into a determination that a certain state interest is or isn’t sufficiently “compelling” or “narrowly tailored” to satisfy the “test.”

However, this Article acknowledges that it does not intend to solve these much larger problems; instead, it proposes that parental rights cases should be decided under the framework of procedural due process. It observes that a clear majority of the Supreme Court’s parental rights cases (seven of thirteen) have employed procedural due process as the framework for decision and, as a result, parental rights cases fit squarely into this framework. Governments operating under our Constitution may not assert their authority over children until there is first some proof that the parents have breached their responsibilities. As a result, there is no logical, textual, or historical reason why governmental invasions into some component of a parent’s custodial decision-making should be decided by a different legal standard from the one employed when the government seeks to remove custodial decision-making authority entirely. We do not need substantive due process to protect parental rights. Instead, give parents a fair trial and make the government first prove harm before it is allowed to intervene.

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