grandparents

[Sandy Levinson]

Michael McConnell writes:



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."

But, of course, this is what makes even Scalia's "most narrowly construed reading of our tradition" slippery and subject to the kind of judicial discretion that Bork condemns.  Why not ask, "in our constitutional tradition, have state legislatures ever exercised the power to modify or terminate a parent's custodial authority over children when such modification or termination is deemed "in the best interests of the child"?

I take it that the answer to this question is yes.  So why can't the state exercise its "in the best interest of the child" power in this case, where a judge has to be persuaded that the grandparent-grandchild relationship would be in such interest and that the parents have no sufficient reason to execise their presumptive (but defeasible) power to say no.

Sandy