grandparents

[Michael McConnell]

I can't agree with Sandy Levinson about the grandparent issue. To
begin with, "anyone who signed Scalia's Michael H. opinion" would
inquire: in our constitutional tradition, have state legislatures ever
exercised the power to tell parents they must give visitation rights
to other people? I believe the answer is "no."

Perhaps we might think that there is no such thing as substantive due
process. (Though Michael H. is to the contrary.) But if there is
anything to substantive due process, this would seem to fall within
it.  If unenumerated rights are defined by longstanding practice and
tradition, then the right of parents to decide who may spend time with
their children seems to qualify. If, as the other wing of the Court
(Brennan et al. in Michael H.) argue, substantive due process is
defined by analogy to earlier precedents, the claim is equally strong,
since the right of the parents to control the upbringing of their
children is at the heart of Pierce, Meyer, Yoder, and the privacy
cases.

-- Michael McConnell (U of Utah)