Article by Anne C. Dailey
This Article has two broad goals: the first is to draw attention to the central role that the family has played, and continues to play, in shaping the Supreme Court's interpretation of constitutional privacy. This insight carries important consequences because it reveals a deep tension within privacy doctrine between the competing goals of safeguarding individual autonomy and insulating communal familial relations. Individual and family together may claim a right of privacy against unwanted intervention by the state. But when individual and family interests differ—when the family is divided—the personal autonomy of the individual comes into direct conflict with the institutional autonomy of the family unit. Within the framework of constitutional privacy lies a fundamental conflict between the principle of individual sovereignty and the principle of communal self-government.
The Supreme Court has attempted to resolve this conflict in favor of individual rights by adopting a view of children as “incompetent” individuals whose development depends on the proper organic functioning of familial relationships of authority. In the Court's view, parental authority is necessary to prepare children for their “eventual participation in a free society.” The Supreme Court has thus come to define the constitutional right of family privacy in terms of the development of future citizens and the maintenance of a liberal democratic order. Yet in so doing, the Court has opened up the “private” family to political meaning and public control, thereby stripping constitutional protection for the family of its privacy rationale. This Article thus aims first to reveal the political meaning of family life underlying the Supreme Court's commitment to family privacy.
The second goal of this Article is to formulate an alternative constitutional approach grounded in an understanding of the family as a distinctly “public” institution serving distinctly political ends. The Article contends that constitutional protection for the family unit need not—and indeed, should not—proceed from the assumption that the family is an inherently “private” institution. Constitutional protection for the family need not derive solely, or even primarily, from a principle of negative liberty. Rather, constitutional protection of the family ought to reflect an understanding of the family's distinct role as a vital intermediate institution serving the communal ends of political life. The family is deserving of constitutional protection because of its essential role in creating and maintaining our broader political order. In doctrinal terms, the Constitution should be read to prohibit state action that threatens to undermine the family's place in the political structure otherwise established by that document.
The family's structural role in our constitutional scheme of government should be understood as twofold: the family both facilitates and constrains the exercise of state power in a way central to the proper functioning of our political system. The family serves to facilitate existing governmental power by helping to create responsible individuals capable of participating in civil and political life. Whereas the doctrine of individual privacy simply assumes the existence of responsible, self-governing individuals, the approach advocated here recognizes that the virtues of family life-and in particular the loving authority of the parental role-are necessary for the promotion and encouragement of a responsible citizenry. Yet families also play a vital role in maintaining the diverse moral values and traditions that comprise the pluralist foundation of our liberal political order, values and traditions that in turn serve to counter the threat that unmediated state power poses to moral diversity. The family's role in nourishing and sustaining diverse moral traditions is what in part distinguishes our liberal democracy from totalitarian political regimes committed to the elimination of the “private” spheres of social life. As the locus of potential political resistance, the family acts as an important institutional check on the power of the state to mold citizens in its own image.
Yet not just any family structure will succeed in sustaining the particular political system established by our Constitution. A liberal democracy requires a corresponding substantive vision of family life. Families are called on to promote the development of individuals possessing values, expectations, and aspirations consistent with a liberal democracy. They must carry out their primary obligation of educating children in the civic virtues, initiating them into an understanding of the political principles that will ultimately tie them to the broader social and political community. To this extent, the family's role in initiating children into political life suggests that there must be some constitutional limits to the degree of family diversity a liberal democracy may tolerate. When the Supreme Court extends protection to the family unit, therefore, it is not merely carving out a private sphere devoid of substantive content-a domestic realm of negative liberty. Rather, it is designing specific values and institutional structures that serve specific political ends.
Once we recognize that the structure of our political order requires a corresponding substantive vision of family life, we must determine the outlines of that substantive vision. This Article contends that families can only succeed in the task of raising children committed to political justice if the family itself is an institution committed to fair, noncoercive practices. In constitutional terms, this means that the structure of our government rests on a promise of family justice. The doctrine of family justice presented in the final section of this Article constitutes an initial effort to make good on that constitutional promise.
The theory of family justice offers an alternative approach to the family in constitutional law. The linchpin of this theory is the recognition that the government necessarily plays a role in the formation and maintenance of family life. The theory of family justice posits that this role must nevertheless be limited by the government's responsibility to sustain family lives compatible with a liberal democratic order. The normative content of this theory-the idea that political justice requires a corresponding vision of family justice enforceable under the Constitution-is elaborated at the conclusion of this Article.
Part II of this Article sets forth the conventional account of the modern family as a private entity separate from and opposed to the public world of work and politics. This Part outlines the portrait of the private family drawn by many contemporary social historians and political theorists, a portrait that underlies the prevailing view of the development of privacy doctrine in constitutional law. It challenges the recent tendency to explain constitutional privacy in terms of a steady evolution away from a private domestic sphere defined by status relationships toward one defined by the voluntary association of equal individuals. Instead, Part II argues that constitutional protection for the family has remained a dominant focus of the privacy cases, evolving alongside the right of individual autonomy. In this manner, the doctrinal framework of constitutional privacy has extended protection to both the individual and the family unit.
Part III dispels the illusion of harmony between individual and family privacy and draws into question the “privacy” basis for constitutional protection of the family. To illustrate the central conflict within contemporary privacy doctrine between individual freedom and communal authority, this Part discusses the recent Supreme Court decision in Hodgson v. Minnesota. Hodgson presents the question whether a state may require notification of both parents that their minor child intends to have an abortion. It is a case that pits the individual right of the minor to decide whether to obtain an abortion against the right of her parents to help guide her decision. This Part focuses on Justice Steven's opinion in Hodgson in order to show how the claim of individual privacy is inherently at odds with the concept of a loving domestic sphere free from governmental intrusion. It explores Justice Steven's effort to protect the family unit, particularly the authority of parents, while simultaneously preserving the autonomy of individual family members. His effort is important not because he succeeds—he does not—but because it reveals the political function of family life within our liberal democracy. Although attentive to the political dimension of family life, Stevens nevertheless fails to confront the implications of his own insights for the doctrine of constitutional privacy. His opinion never breaks away from the prevailing view of the family as a sphere of negative liberty, free of political significance.
Part IV presents an alternative model of the family's place under the Constitution. Rejecting the prevailing model of the family as a private association, this alternative approach is rooted in an understanding of the family as an intermediate political institution, one that mediates the direct relationship between the individual and the state. Subpart A sets forth a critique of the traditional understanding of the family as a private entity separate from and opposed to the public sphere of politics and law. This subpart offers an alternative historical account of the family as an inherently and necessarily public institution subject to social and political norms. Subpart B presents the conservative version of this “public” model of the family-a version that appears to animate the Supreme Court's emerging deference to state laws affecting family life. The view of the family as a public institution, however, also possesses the normative material for constructing a progressive vision for the family's role in our political order. Subpart C explores the implications of such a progressive vision for constitutional law and presents an alternative constitutional model of family justice.
Part IV concludes that the structure of government guaranteed by the Constitution puts constraints on the power of government to create and regulate family life—constraints determined not by the family's status as a “private” institution, but by the family's political role in our liberal democratic scheme of government. Illuminating the nature of that political role and the contours of those governmental constraints is the final subject of this essay.
About the Author
Anne C. Dailey. Professor of Law, University of Connecticut. B.A., 1983, Yale University; J.D., 1987, Harvard Law School.
Citation
67 Tul. L. Rev. 955 (1993)