6/06/00 11:30 a.m.
A Very Dangerous Doctrine
A good Supreme Court decision — and how it threatens our future.

By John McGinnis, professor at the Cardozo School of Law

he Supreme Court's decision yesterday in Troxel v.Granville raises two profound questions about who should make decisions. The first is, Who should decide on the appropriate people to spend time with children — their parents or the courts? The second is, Who should decide on the wisdom of laws not addressed in the Constitution — democratic legislatures or, once again, the courts? In Troxel the Supreme Court invalidated a Washington state law that authorized courts to tell parents to permit any person to visit their children when the court determines that those visits are in the child's best interest. Justice O'Connor, writing the plurality opinion for four justices on a very splintered Court, said this broad statute violated the "substantive due process" rights of parents by taking away their right to control access to their children without any showing that their decisions to refuse access were actually causing substantial harm.

On the surface, this opinion may seem a rare triumph for social conservatism at the Court. The plurality is saying that states are not free to take decisions that parents traditionally make — such as determining who is worthy to have influence over their children — and give them to bureaucrats in robes, at least when the standards guiding the bureaucrats are as open-ended as the "best interests of the child." Certainly Washington state's law is a very bad one-an example of how statism has moved from managing the economy to managing the relations among people, even family relations. The risk in the coming century seems to be that government will assume the role of grand therapist rather than grand inquisitor or economic czar. The objections to that role, however, are little different from those conservatives successfully lodged against the old forms of socialism. Government officials lack the information and motivation to make the manifold and complex decisions involved in raising children. As long as parents are mentally fit, they have the localized information and enduring affections to reach much better decisions, on average, than a bureaucrat. This is true even when the decision is about the influence that other relatives, such as grandparents, should have.

Nevertheless Troxel should give conservatives pause. The basis of the decision was "substantive due process" — the same doctrine with which the Court has invalidated laws restricting abortions. The phrase "substantive due process" nowhere appears in the Constitution, and the original meaning of the Due Process Clause that actually appears in the Constitution focuses, as the name implies, on procedure rather than substance. Here the objection to the visitation law was not simply procedural but substantive: it took away rights from parents. Hence the Court found it necessary to appeal to the doctrine of substantive due process, not simply the Due Process Clause, to strike the law down. But substantive decisions about the nature of rights sharply contrast with decisions about procedure, making the term "substantive due process" an oxymoron as well as a doctrine fabricated by judges rather than fashioned by the Framers.

Therefore the real question about this case concerns the constitutional decisionmaking process for determining the validity of laws rather than the judicial decisionmaking process the Washington law itself establishes. The danger of "substantive due process" is that it gives judges a roving commission to invalidate laws they do not like without any clear warrant in the Constitution. Even if we applaud this particular result, we must question whether this principle is sound. It is worth remembering that objections to "substantive due process" are not that different from our objections to the Washington law itself. We have rule by democracy — rather than by Platonic guardians — because we think that democracy will be better on average at pooling localized information of the kind every citizen has. Democracy also runs less risk of tyranny, because it disperses power. Rule by judges lacks these advantages. Do nine men and women sitting in a marble temple in Washington, the city whose principal business is to mind other people's business, have the information and motivation to make consistently better decisions than local democracies? Does allowing justices to determine the validity of laws under standards as nebulous as "substantive due process" dangerously centralize power? How can we be confident that they will not use this authority against families tomorrow, as many argue they did in the abortion cases a short time ago? These are important questions to ponder, even as we celebrate the strengthening of families that will be the short-term consequence of this ruling.