McConnell marriage proposal + grandparent's rights
LEVINSON at JURIS.LAW.NYU.EDU
Fri Oct 29 11:03:21 PDT 1999
I think I now understand Michael's proposal better than I did before. I had (apparently wrongly) assumed that he was joining those who want the state to move back from no-fault divorce to a more stringent system. As to contract, should the state be able to require "full disclosure" before enforcing the contract? E.g., I'd be more sympathetic to Michael's contract argument if the contract said:
"Both of us agree that even if one (or both) of us come(s) to the conclusion that our marriage is stifling and otherwise destructive to our individual or joint interests, the state shall refuse to grant us a divorce."
If parties really do sign such contracts, then I suppose I'd be willing to consider holding them to their (stupid) bargain. But if the contract says,
"Because we love each other to bits, and can't imagine ever becoming like the 50% of our fellow Americans whose marriages dissolve, we hereby pledge to stay together forever and renounce any right to divorce that the legal system might otherwise provide,"
then I'd be less inclined to enforce. The latter is like a consumer credit contract that omits the onerous details or, more accurately, puts them in 4-point type that is designed not to be read and pondered as the consumer, in a fit of enthusiasm, goes for the television or the used car.
PS: I'm still not at all clear why the Constitution, correctly read, puts such authority in parents to act against the best interests of their children. I take it there is no "original intent" evidence on this point (perhaps because the issue quite literally never occurred to anyone at the time), nor is there the slightest textual support for the proposition. What, incidentally, do opponents of the Washington law think of New York Mayor Guiliani's latest proposal to take children away from homeless parents who don't meet his authoritarian definition of readiness to work in regturn for homeless shelter? Is it perfectly all right for the state to strip the parent of custody over her (and I use the pronoun advisedly) children. What is the "tradition" here, that the state can do whatever it wishes to those it defines as the "undeserving poor"?
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