request for help understanding Thomas' concurance in Troxell

[Paul Horwitz]

Whatever Thomas's feelings may be about the law in this area, I had thought 
Thomas was straightforward enough: he didn't feel the issue was properly 
presented for resolution in that case: "neither party has argued that our 
substantive due process cases were wrongly decided and that the original 
understanding of the Due Process Clause precludes judicial enforcement of 
unenumerated rights under that constitutional provision.  As a result, I 
express no view on the merits of this matter..."  Note that he doesn't 
expressly offer a view here as to whether fundamental rights exist under 
substantive due process, although he wears his heart on his sleeve a little; 
and note that he also adds that "[t]his case also does not involve a 
challenge based upon the Privileges and Immunities Clause and thus does not 
present an opportunity to reevaluate the meaning of that Clause."

Paul Horwitz
Southwestern University School of Law
Los Angeles, CA


>From: Malla Pollack <mpollack at uidaho.edu>
>To: CONLAWPROF at lists.ucla.edu
>Subject: request for help understanding Thomas' concurance in Troxell
>Date: Thu, 09 Feb 2006 15:42:34 -0800
>
>I am getting ready to teach a Con Law class for the first time on Troxell 
>v.
>Granville, 530 US 57 (2000) (affirming state supreme court's killing of an
>order forcing mother to allow visitation by grandparents) and would like
>some help understanding Justice Thomas' concurrence.  The Court affirms the
>state supreme court's reversal of a visitation order issued pursuant to a
>statute allowing "anyone" to petition a family court for visitation. Thomas
>says (i) unenumerated fundamental rights do not exist (including the one 
>the
>mother is relying on to kill  the visitation order), (ii) review of a
>state's interference with fundamental rights should be strict scrutiny
>;(iii) concur in affirmance.
>
>    Since Thomas does not believe the mother has any harmed fundamental
>right, why is he concurring in the judgement? This is especially confusing
>(at least to me) because this is a concurrence limiting a state's power.
>
>
>
>Malla Pollack
>
>Professor, American Justice School of Law
>
>Visiting Univ. of Idaho, College of Law
>
>mpollack at uidaho.edu
>
>208-885-2017
>
>
>


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