grandparents

[William Funk]

One trying to assert the existence of an unenumerated right under
substantive due process must establish that the existence of that right
is "deeply rooted in this Nation's history and tradition."  Scalia's
variation on that theme in Michael H. is that the definition of the
tradition must be as narrow as possible, because a broad statement of
the tradition (government usually recognizes a person's to be left
alone) leaves too much discretion to judges to invent rights.  In the
Washington grandparents case (it really should be denominated the
"parents case"), the unenumerated right being claimed (and found by the
court) is the right of the parents to keep the grandparent from being
able to visit their child.  The tradition broadly claimed would be the
traditional right of parents to raise their children as they see fit.
The tradition narrowly stated would be the traditional right of parents
to restrict who can interact with their children (if indeed there is
such a tradition).  Sandy and Mike focus on what government has
traditionally regulated, rather than on what has traditionally been
protected, which is not quite the same thing.  Certainly, if government
has traditionally regulated something, there is no tradition of a right
not to be regulated, but the opposite is not true -- a tradition of
non-regulation does not necessarily establish a tradition of their being
a right not to be regulated.  And frankly I am shocked (yes, shocked!)
to see Mike McConnell come out in favor of protecting an unenumerated
right of privacy here.

Bill Funk
Lewis & Clark Law School